Petition for Writ of Certiorari — Paty v. Napeahi

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Bupreme Court, U.S.

FILED

No. 90-__ JUN 18 199)

In The OFFICE OF THE amp.

Supreme Court of the United States

October Term, 1990

WILLIAM F. PATY, Director, Department of Land

and Natural Resources, State of Hawaii,

Petitioner,

VS.

MERVIN NAPEAHI, individually and on behalf

of all those similarly situated,

Respondent.

Petition For A Writ Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

WARREN Price, III*

Attorney General

State of Hawaii

*Counsel of Record

STEVEN S. MICHAELS

Epwin P. WATSON

Deputy Attorneys General

State of Hawaii

425 Queer Street

Honolulu, Hawaii 96813

(808) 586-1365

Counsel for Petitioner

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Whether private individuals who are only poten-

tially beneficiaries of specific benefit programs administered

with the public trust lands conveyed to Hawaii by § 5 of its

Admission Act, Pub. L. 86-3, 73 Stat. 4, and whose benefits

will depend on decisions by state officials who have lawful

discretion to deny all benefits to such persons, may nonethe-

less, despite the jurisdictional limits of Article III] and the

Eleventh Amendment, seek relief in the federal courts whose

effect would be only to increase the level of assets in the

public land trust?

2. Whether, § 5(f) of the Hawaii Admission Act, which

requires that lands subject thereto be used for “one or more”

of five purposes “in such manner as the constitution and

laws” of Hawaii “may provide,” and which authorizes a suit

“by the United States” as the stated remedy for the use of

trust lands “for any other object,” is enforceable by private

citizen suits filed pursuant to 42 U.S.C. § 1983, and, if so,

whether review in such suits includes not only whether the

“one or more” clause has been generally complied with, but

also whether each and every state law bearing on the § 5(f)

land trust has been obeyed?

3. Whether, in light of the Eleventh Amendment's dis-

tinct bar on enforcement of state law against State officials,

the dependence of the threshold question below, namely,

whether certain lands in Hawaii were transferred to the State

- by operation of law, on matters of state law independently

require Respondent’s action in the federal court to be heard

in state court, or, alternatively, required the lower federal

courts to abstain?

QUESTIONS PRESENTED - Continued

4. Whether, assuming this Court does not wish imme-

diately to grant plenary review, the Court nonetheless should

hold this Petition pending this Court’s forthcoming decision

in Suter v. Artist M., No. 90-1488 (U.S. cert. granted May 13,

1991)?"

* William F. Paty, the Petitioner in this Court, is the Chair-

man of the Board of Land and Natural Resources of the State of

Hawaii, and the Director of the Department of Land and

Natural Resources of the State of Hawaii. He was sued below

solely in his official capacity and so appears in this Court.

Other persons who were named as Defendants in the District

Court, but whose involvement was terminated prior to entry of

final judgment in the District Court include John O. Marsh,

Secretary of the Army; Colonel Michael M. Jenks, District

Engineer, U.S. Army Corp. of Engineers; Lee Thomas, Admin-

istrator, U.S. Environmental Protection Agency; Judith Ayers,

Regional Administer, E.P.A. Region IX; Transcontinental Devel-

opment Co., ATPAC Land Co., and Leslie $. Matsubara, Direc-

tor of the Department of Health, State of Hawaii. See Pet App.

15-21.

Respondent Mervin Napeahi alleges that he is of more

than one half Hawaiian descent and, for that reason, a Native

Hawaiian under the Hawaiian Homes Commission Act, and, it

is alleged by respondent, a beneficiary of § 5(f) of the Hawaii

Admission Act and certain state constitutional provisions and

statutes enacted pursuant to the discretion conferred by the

Act, e.g., Haw. Const. art. XII, § 4 (1978). Originally, the Sierra

Club, and Hawaii Audubon Society participated as parties

Plaintiff, but dropped their participation following a ruling

upon motions to dismiss. See Pet. App. 94. While a prayer for

class action treatment was suggested in the original caption,

class certification was never sought, or granted, in the District

(Continued on following page)

iii

QUESTIONS PRESENTED - Continued

(Continued from previous page)

Court. In the Court of Appeals, Respondent continued to cap-

tion his pleadings as including himself and “all those similarly

situated.” See 921 F.2d 897. To the extent Respondent continues

to treat this case as an inchoate class action, Petitioner deems

“those similarly situated” to be respondents, and now places

Respondent Napeahi on notice of this.

TABLE OF CONTENTS

Page

Re SITs fc ko te ok nk cannes dc vasecous iv

pr 8 ee rere vi

ee ore cin cevccdeeehsbasvysesanvacds 1

oa wrk ss meee GAR Gis eK aek eK ORK: 2

CONSTITUTIONAL AND STATUTORY PROVI-

ED SUOMI TIED wc nsccereeveciusscecsescses 3

SIATEMGNT OF THE CASE... 2... cc ccc cccccsesces 6

A. The Background of Hawaii's Public Trust Lands 7

i See Se MAING x's ever ees eeiwcass sae see 10

REASONS FOR GRANTING THE WRIT ........... 13

I. The Ninth Circuit’s Expansive Invitation to Suits

Seeking to Manage Hawaii's Public Trust Lands

Raises Substantial Questions Under Article III

and the Eleventh Amendment Which Merit This

Court’s Review and Reversal ................. 17

A. The Ninth Circuit’s Allowance of Land

Trust “Beneficiary” Standing Conflicts With

This Court’s Precedents, or, at the Very

Least Raises Substantial Questions that

TS SED UNE a 6b. 6 ke sciea cane be eenas 17

B. The Ninth Circuit’s Judgment Allowing

Respondent’s Suit To Proceed Independently

Conflicts With Settled Principles of Immunity

Under the Eleventh Amendment............ 22

Il. The Court Should Grant Review to Correct the

Court of Appeals’ Expansive Reading of 42

U.S.C. § 1983 for Enforcement of The States’

Trust Duties Under their Admission Acts ..... 23

TABLE OF CONTENTS - Continued

Page

III. The Court Should Grant Review to Correct the

Court of Appeals’ Failure to Dismiss or Abstain

Pending the State Courts’ Resolution of the

Underlying Ownership Issue Here ............ 28

CONCLUSION

TABLE OF AUTHORITIES

Page

Cases:

Alabama v. Pugh, 438 U.S. 781 (1978) ................ 22

Allen v. Wright, 468 U.S. 737 (1984) ...... 14, 18, 20, 21

ASARCO Inc. v. Kadish, 490 U.S. 605 (1989). 3, 9, 14, 18

Association of Data Processing Service Organizations,

ae, MG, SOF US. TOO CIGTEP... 2 wesc n eee vcecs 18

Bender v. Williamsport Area School District, 475 U.S.

SS ere Pere err Pree eer 17

Burford v. Sun Oil Co., 319 U.S. 315 (1943) ...11, 16, 29

County of Hawaii v. Sotomura, 55 Haw. 176 (1973) .... 12

Dennis v. Higgins, 111 S.Ct. 865 (1991)............ 16, 26

Edelman v. Jordan, 415 U.S. 651 (1974)............... 22

Florida Dep't of State v. Treasure Salvors, Inc., 458

iia 52a agg ks C66 Kaas Chae Oe wae 3 15, 23

Hawaii Housing Authority v. Midkiff, 467 U.S. 229

NES 55 tela o- 560 BAS EEKEP CAE RA OS 16, 24, 27

In ve Ashford, 50 Haw. 314 (1968) ................... 12

Heckler v. Chaney, 470 U.S. 821 (1985) ............... 21

Keaukaha-Panaewa Community Ass’n v. Hawaiian

Homes Commission, 588 F.2d 1216 (9th Cir. 1978)

Pe ee oP ee TEC EEL tee TCL OTT ETE TET Tee 9, 11, 24

Keaukaha-Panaewa Community Ass'n v. Hawaiian

Homes Commission, 739 F.2d 1467 (9th Cir. 1984)

ECR TENE ev hich SENSES TREONE Cede eeees 11, 12, 24

vii

TABLE OF AUTHORITIES - Continued

Page

Kepoo v. Burgess, No. 14770 (Haw. argued June 13,

SR ee te re Pee ee 17

Linda R.S. v. Richard D., 410 U.S. 614 (1973)......... 21

McBryde Sugar Co. v. Robinson, 54 Haw. 173, 504

es err ree. eee ee ee 9

Martin v. Wilks, 490 U.S. 755 (1990) ................. 21

Naltielua v. State of Hawaii, No. 90-15842 (9th Cir.

Oe 17

Napeahi v. Paty, 921 F.2d 897 (9th Cir. 1990)..... passim

Ngirangas v. Sanches, 110 S.Ct. 1737 (1990)........... 28

Oberlander v. Perales, 740 F.2d 116 (2d Cir. 1984). .16, 27

Oregon ex rel. State Land Board v. Corvallis Sand &

eo Ge ek es 23

Papasan v. Allain, 478 U.S. 265 (1986)...3, 14, 15, 22, 23

Pele Defense Fund v. State of Hawaii, No. 89-89

CEU, Sah, BO I DUE oc als cnc ccnsd vevcesiceces 17

Pennhurst State School & Hospital v. Halderman, 451

WR GEL. . ah echoes cane oey ee ek ubnd cheese 27

Pennhurst State School & Hospital v. Halderman, 465

RR SUE WN ehtacbbetwoveat ace dues 22, 23, 28, 29

Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987) ........ 30

Phillips Petroleum Co. v. Mississippi, 484 U.S. 469

a aba aba Geng euc aco neul sph ieak Caaek ad 26, 29

Price v. Akaka, 915 F.2d 469 (9th Cir. 1990)

Se PEO e nee tree rer eee Creer eee a, 12, if, 16, Zi, Zo

viii

TABLE OF AUTHORITIES - Continued

Page

Price v. Hawaii, 764 F.2d 923 (9th Cir. 1985) ...... 11, 18

Price v. Hawati, No. 90-15117 (9th Cir. argued June

| Pe Tee eer ree CETTE TT Tee 17

Railroad Comm'n of Texas v. Pullman Co., 312 U.S.

IN is 665 500s. ann 5095655040 640s008600080% 16, 29

Shulthis v. McDougal, 225 U.S. 561 (1912)............ 24

Simon v. Eastern Kentucky Welfare Rights Org., 426

fo 2 REP OT Eee eer TTT TTT Teer Tee 15, 20

Suter v. Artist M., No. 90-1488 (U.S. cert. granted

RE Rs WUE hs RG ha ietaneewktencasdss 15, 24, 25, 30

State v. Zimring, 58 Haw. 106 (1977).............. 12, 28

Trustees of the Office of Hawatian Affairs v. Yamasaki,

69 Haw. 154, 737 P.2d 46, cert. denied, 484 U.S.

PPE Ter eT CTT CLT eT PELL O TEE eT 2, 20

Virginia v. American Booksellers Ass'n, 484 U.S. 383

Er 4 Ns Shee SiR MUNK Chiesa cas oubcewnsend 29

Warth v. Seldin, 422 U.S. 490 (1975) ..............--. 18

Whitmore v. Arkansas, 110 S.Ct. 1717 (1990).......... 21

Wilder v. Virginia Hospital Ass'n, 110 S.Ct. 2610

een ere terres 16, 24, 26, 27, 28

Wright v. Roanoke Redevelopment and Housing

Authority, 479 U.S. 418 (1979)............. 0008. 27, 28

Younger v. Harris, 401 U.S. 37 (1971). ..............-. 29

STATUTES:

I San on pga sakes nde cams neg su baccd 2

a eawan anions 2,11

TABLE OF AUTHORITIES - Continued

Page

ei ree Tee ere Teer eTeer Ere Terr eer 2

i is Or NS bok oss Fano e e605 400544445 vatens passim

Oregon Admission Act, 11 Stat. 383 (1859).......... 14

Nevada Enabling Act, 13 Stat. 30 (1864)............. 14

North Dakota-South Dakota-Montana-Washington

Enabling Act, 25 Stat. 676 (1889).................. 14

Idaho Admission Act, 26 Stat. 215 (1890)............ 14

Joint Resolution to Provide for Annexing the

Hawaiian Islands, Resolution of July 7, 1989, 30

eR ee ee ee eee 8

Hawaii Organic Act, § 91, 31 Stat. 141 (1900)........ 8

New Mexico-Arizona Enabling Act, 36 Stat. 557

Re eee eee TT eT ere TEE Tere 9

Arizona-New Mexico Enabling Act, 36 Stat. 557

GLEE Deees Ce bes ate Rae es ae ke wean ew ES 14

Alaska Admission Act, 72 Stat. 339 (1958)........... 14

Hawaii Admission Act, Pub. L. 86-3, 73 Stat. 4

GE CCC RAM aa dno oa 56 none tenes Cath aeeaee eos 4, 8

Hawaii Admission Act, Pub. L. 86-3, 73 Stat. 6

SINE Cised cn Cuaaaen eee kd pak owes eid 4, 8

Act of December 23, 1963, Pub. L. No. 88-233, 77

ge Rep et errr PP rr rrr ee Te 7

oo errr 6, 19

oo ee ee 20

TABLE OF AUTHORITIES - Continued

Page

Pome. TPC, SOME. GOA Be CEI oi os scene cer cieckasay. 6

Act of July 2, 1990, ch. 304, 1900 Haw. Sess. L. 947

RRR re: pe ey ee Peet Ser eee 9

CONSTITUTIONAL PROVISIONS:

United States Constitution, Article III, § 2, cl. 1. passim

United States Constitution, Eleventh Amendment . .3, 23

Hawaii Constitution, art. 12, § 4 (1978) .............. 6

Hawaii Constitution, art. 12, § 5 (1978) .............. 6

Hawaii Constitution, art. 12, § 6 (1978) .............. 6

Court RUuLEs:

Ae AL Be ee Pee ee er ete nl oan EAN py 2

No. 90-___

In The

Supreme Court of the United States

October Term, 1990

WILLIAM F. PATY, Director, Department of Land

and Natural Resources, State of Hawaii,

Petitioner,

MERVIN NAPEAHI, individually and on behalf

of all those similarly situated,

Respondent.

Petition For A Writ Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

‘

PETITION FOR A WRIT OF CERTIORARI

Petitioner William F. Paty, Director of the Department

of Land and Natural Resources, State of Hawaii,

respectfully prays that a writ of certiorari issue to review

the opinion and judgment of the United States Court of

Appeals for the Ninth Circuit entered in the above-enti-

tled proceeding on December 18, 1990.

OPINIONS BELOW

The opinion of the Court of Appeals for the Ninth

Circuit is reported at 921 F.2d 897 and is printed in

Appendix (“App.”) “A,” infra. The District Court’s order

denying Petitioner’s motion to dismiss is unreported and

is printed in App. “B.” The District Court’s Decision and

Order after trial, granting judgment to Petitioner, and

order denying Respondent’s motion under Rule 59, Fed.

R. Civ. P., which were in turn vacated in part by the Court

of Appeals, are printed in App. “C” and “D.” The related

opinion in the cause Price v. Akaka, appeal No. 89-15169

(9th Cir. Sept. 25, 1991), pet. for cert. to be filed (U.S. June

19, 1991), on which the Ninth Circuit panel relied in

determining that Respondent had Article III standing and

the right to seek redress under 42 U.S.C. § 1983, is

reported at 915 F.2d 469 (9th Cir. 1990), and is reprinted at

App. “E.” The related opinion of the Hawaii Supreme

Court in Trustees of the Office of the Hawaiian Affairs v.

Yamasaki, is reported at 69 Haw. 154, 737 P.2d 46, cert.

denied, 484 U.S. 898 (1987).

JURISDICTION

The judgment of the United States Court of Appeals

for the Ninth Circuit was enter -d December 18, 1990, and

a timely petition for rehearing and suggestion of the

appropriateness of rehearing en banc was filed on Janu-

ary 2, 1991, and denied on March 20, 1991. The time in

which this Petition may be filed therefore extends to and

includes June 18, 1991, and this Petition is timely. Juris-

diction in the District Court was alleged to have been

conferred pursuant to 28 U.S.C. §§ 1331 and 1361. Juris-

diction in this Court is invoked under 28 U.S.C. § 1254(1).

The Court of Appeals, following its decision in Price

v. Akaka, 915 F.2d 469, 471-72 & n.2 (9th Cir. 1990), deter-

mined that it and the District Court had subject matter

jurisdiction to determine whether 1.75 acres of land on

the Big Island of Hawaii fell within the scope of the 5(f)

trust corpus, and, if so, to enter “an appropriate judg-

ment” on respondent’s claims for declaratory and injunc-

tive relief which, in material part, sought revocation of

state shoreline certifications granted to private property

mn—tt(U,—-™—_—___eal»sss-

owners on the Big Island of Hawaii, allegedly in conflict

with the duties conferred by § 5(f) of the Act.

Petitioner asserts, as is developed more fully below,

that under the rationale of the four-justice plurality in

ASARCO, Inc. v. Kadish, 490 U.S. 605 (1989), which Peti-

tioner urges be adopted by the Court in this case, and

other law, Respondent lacked Article III standing and

that, under Papasan v. Allain, 478 U.S. 265 (1986), and

related cases, the relief sought, in a suit in which the

private owners are no longer parties, is inconsistent with

the bar of the Eleventh Amendment, and other principles

governing the jurisdiction of the courts below.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Article III, section 2, clause 1 of the United States

Constitution provides in relevant part that

The Judicial Power [of the United States]

shall extend to... Cases... [and] to Controver-

eles. ...

The Eleventh Amendment to the United States Con-

stitution provides that

The Judicial power of the United States

shall not be construed to extend to any suit in

law or equity, commenced or prosecuted against

one of the United States by Citizens of another

State, or by Citizens or Subjects of any Foreign

State.

Section 1983 of Title 42 of the United States Code

provides that

Every person who, under color of any stat-

ute, ordinance, regulation, custom, or usage, of

any State or Territory or the District of Colum-

bia, subjects, or causes to be subjected, any Citi-

zen of the United States or other person within

the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the

party injured in an action at law, suit in equity,

or other proper proceeding for redress.

Section 5 of the Hawaii Admission Act, Pub. L. 86-3,

73 Stat. 4, 6 (1959), provides in pertinent part that

(a) Except as provided in subsection (c) of this

section, the State of Hawaii and its political

subdivisions, as the case may be, shall succeed

to the title of the Territory of Hawaii and its

subdivisions in those lands and other properties

in which the Territory and its subdivisions now

hold title.

(b) Except as provided in subsection (c) and

(d) of this section, the United States grants to

the State of Hawaii, effective upon its admission

into the Union, the United States’ title to all the

public lands and other public property, and to

all lands defined as “available lands” by section

203 of the Hawaiian Homes Commission Act,

1920, as amended, within the boundaries of the

State of Hawaii, title to which is held by the

United States immediately prior to its admission

into the Union. The grant hereby made shall be

in lieu of any and all grants provided for new

States by provisions of law other than this Act,

and such grants shall not extend to the State of

Hawaii.

date Hawaii is admitted into the Union, are set

aside pursuant to law for the use of the United

States under any (1) Act of Congress, (2) Execu-

tive order, (3) proclamation of the President, or

(4) proclamation of the Governor of Hawaii

shall remain the property of the United States

subject only to the limitations, if any, imposed

under (1), (2), (3), or (4), as the case may be.

(d) Any public lands or other public property

that is conveyed to the State of Hawaii by sub-

section (b) of this section but that, immediately

prior to the admission of said State into the

Union, is controlled by the United States pur-

suant to permit, license, or permission, written

ea ea em mm EE

or verbal, from the Territory of Hawaii or any

department thereof may, at any time during the

five years following the admission of Hawaii

into the Union, be set aside by Act of Congress

or by Executive order of the President, made

pursuant to law, for the use of the United States,

and the lands or property so set aside shall,

subject only to valid rights then existing, be the

property of the United States.

(e) Within five years from the date Hawaii is

admitted into the Union each Federal agency

having control over any land or property that is

retained by the United States pursuant to sub-

sections (c) and (d) of this section shall report to

the President the facts regarding its continued

need for such land or property and if the Presi-

dent determines that the land or property is no

longer needed by the United States it shall be

conveyed to the State of Hawaii.

(f) The lands granted to the State of Hawaii by

subsection (b) of this section and public lands

retained by the United States under subsections

subsection (e), together with the proceeds from

the sale or other disposition of any such lands

and the income therefrom, shall be held by said

State as a public trust for the support of the

public schools and other public educational

institutions, for the betterment of the conditions

of native Hawaiians, as defined in the Hawaiian

Homes Commission Act, 1920, as amended, for

the development of farm and home ownership

on as widespread a basis as possible[,] for the

making of public improvements, and for the

provision of lands for public use. Such lands,

proceeds, and income shall be managed and

disposed of for one or more of the foregoing

purposes in such manner as the constitution and

laws of said State may provide, and their use for

any other object shall constitute a breach of trust

for which suit may be brought by the United

(g) As used in this Act, the term “lands and

other properties” includes public lands and

other public property, and the term “public

lands and other public property” means, and is

limited to, the lands and properties that were

ceded to the United States by the Republic of

Hawaii under the joint resolution of annexation

approved July 7, 1898 (30 Stat. 750), or that have

been acquired in exchange for lands or proper-

ties so ceded.

Sections 4, 5, and 6 of the Hawaii Constitution of

1978, Chapter 10, Haw. Rev. Stat. (1985), as amended by

the Act of July 3, 1990, together with relevant provisions

of Chapter 205, Haw. Rev. Stat. (1985), are reprinted in

Appendix “N,” infra.

STATEMENT OF THE CASE

In admitting our Fiftieth State to the Union on “an

equal footing” with the remaining States, Congress

returned to the control of the people of Hawaii, through

their new State government, more than 1.3 million acres

which are known as Hawaii's “public trust lands.” More

than 30 years later, despite the doctrines that render a

State’s management of its own lands of only local con-

cern, these lands constituting more than one fifth of the

land mass of the Hawaiian Islands, now face the threat of

ongoing, and pervasive federal regulation by a host of

private litigants, in so-called “breach of trust” suits under

42 U.S.C. § 1983 to “enforce” § 5(f) of the Admission Act.

That law provides only that the trust lands ar? to be used

for “one or more” purposes, defined broadly to include

any provision of land “for public use” as “the constitu-

tion and laws” of Hawaii “may provide.” The sole stated

remedy for use of 5(f) lands “for any other object” is a

suit “by the United States.”

——

The issue in this case is whether, notwithstanding the

broad discretion, and limited remedial structure, set forth

in § 5(f), and this Court’s consistent refusal, from its

elaboration of the Eleventh Amendment and Article III, to

the Equal Footing doctrine, to countenance federal inter-

ference in the States’ management of their own affairs,

the Court of Appeals was correct to reinstate a lawsuit,

by a private citizen with no legitimate claim of entitle-

ment to any particular benefit from the 5(f) corpus, which

seeks, not merely to enjoin land management practices

that affirmatively injure, but to compel the State to abro-

gate other private expectations, and to thereby recover

potentially thousands of acres of land under novel theo-

ries of Hawaiian law which have never been endorsed by,

or even tested before, the courts of the State of Hawaii.

Whether the jurisdiction of the inferior federal

courts, and the Civil Rights Act of 1871, 42 U.S.C. § 1983,

may be deployed in this fashion is the question to be

decided here.

A. The Background of Hawaii's Public Trust Lands.

1. Hawaii’s public trust lands,’ were originally

transferred to the United States by the Republic of

Hawaii at the time of annexation in 1898, subject to the

' The size of the public trust lands is computed by taking

the original lands ceded by the Republic of Hawaii, estimated

at roughly 1.8 million acres, and subtracting acreage set aside,

before Statehood, by executive orders of the President or Gov-

ernor of Hawaii for use of the United States, and ceded lands

controlled by the United States pursuant to permits, licenses,

and permission of the Territory. See Legislative Auditor of the

State of Hawaii, Progress Report on the Public Land Trust 14

(March 1983). Because of the Act of December 23, 1963, Pub. L.

No. 88-233, 77 Stat. 472 (1963), the size of the public land trust

increases as the United States releases lands under the terms of

sections 5(c)-(e) of the Hawaii Admission Act.

condition that “existing laws of the United States relative

to public lands” would not apply. See the Joint Resolution

to Provide for Annexing the Hawaiian Islands, Resolution

of July 7, 1898, 30 Stat. 750 (1898). The United States

agreed with the Republic’s agents that “all revenue from

or proceeds of [said lands,] except regards such part

thereof as may be used or occupied for the civil, military,

or naval purposes of the United States, or may be

assigned for the use of the local government, shall be

used solely for the benefit of the inhabitants of the

Hawaiian Islands for educational and other purposes.” Id.

The authority granted to the local government of Hawaii

by the Joint Resolution was confirmed in section 91 of the

Organic Act, Act of April 30, 1900, 31 Stat. 141 (1900),

which, among other things, granted the Territory author-

ity to “maintain, manage, and care for” lands not

reserved for national purposes, and required consider-

ation earned by the United States on disposition of such

land to be turned over to the Territory for such uses as

“public works,” “or other public purposes.” Id.

2. When Hawaii entered the Union, Congress reaf-

firmed the authority of Hawaii’s local government to deal

with public trust property. Pub. L. No. 86-3, 73 Stat. 4

(1959). Public lands whose title at Statehood was not in

the Territory and to which the State did not succeed

under § 5(a) of the Admission Act, and which were

returned under §§ 5(b)-(e), were granted to Hawaii for

disposition for “one or more” of five purposes: (1) “sup-

port of the public schools and other public educational

institutions”; (2) “betterment of the conditions of native

Hawaiians, as defined in the Hawaiian Homes Commis-

sion Act, 1920, as amended”; (2) “development of farm

and home ownership on as widespread a basis as possi-

ble”; (4) “making of public improvements”; and (5) provi-

sion of lands for “public use.” § 5(f), 73 Stat. at 6.

Congress noticeably did not state that a disposition in

breach of § 5(f) would be “null and void.” Cf. New

Mexico-Arizona Enabling Act, 36 Stat. 557, 575 (1910),

quoted, ASARCO, Inc. v. Kadish, 490 U.S. 605, 627 (1989).

Congress's prescribed remedy for a failure to manage and

dispose of “5(f)” land “for one or more of the foregoing

purposes in such manner as the constitution and laws of

said State may provide” would be a “suit .. . by the

United States” for “breach of trust.” 73 Stat. at 6. As now-

Chief Judge Wallace wrote in Keaukaha-Panaewa Commu-

nity Ass'n v. Hawaiian Homes Comm'n, 588 F.2d 1216 (9th

Cir. 1978) (“Keaukaha I”), the history of § 5(f) lacks “any

indication that Congress intended to create a private

cause of action via the Admission Act.” Thus, “by provid-

ing a specific remedy, Congress intended to exclude

others.” Id. at 1223.

3. Although the Hawaii legislature could have law-

fully created specific entitlements to 5(f) trust assets for

various beneficiary classes, it has not done so, and, has

retained, in large measure through the statutes governing

the Department of Land and Natural Resources, Ch. 171,

Haw. Rev. Stat. (1985), the State’s discretion to dispose of

5(f) land for “one or more” of the Admission Act’s enu-

merated purposes. See Haw. Rev. Stat. § 171-18 (1985).

While the Director’s discretion has been qualified by the

1978 state constitution’s creation of an Office of Hawaiian

Affairs, whose implementing legislation entitles OHA to

a percentage of the revenues from public trust lands, see

the Act of July 2, 1990, Ch. 304, 1990 Haw. Sess. L. 947,

Pet. App. “N,” infra, these mandates do not require the

Director to maximize (or even generate) 5(f) revenue from

a 5(f) parcel. To the extent the beneficiaries of § 5(f) reap

the benefits of the public trust lands, it is a consequence

only of discretionary public grants or state compliance

with the general statutory safeguards designed to pre-

serve land for public use. Likewise, because adverse pos-

session (and other statutes of limitation) do not run

against the sovereign in Hawaii, see McBryde Sugar Co. v.

aie

Robinson, 54 Haw. 173, 504 P.2d 1330 (1973), there is no

specific mandate in state law for recovery of 5(f) land that

has fallen, inadvertently or not, into use by private

hands. Such recoveries would be authorized, but not

mandated, by the general common law of Hawaii, as

enforced by the Department of the Attorney General,

which in this context has the exclusive authority to bring

and prosecute civil litigation on behalf of the State.

B. The Instant Litigation.

1. The instant suit was filed in the federal District

Court for the District of Hawaii in December 1985, by

Respondent Mervin Napeahi, and the Sierra Club and

Hawaii Audubon Society, against Petitioner Director of

the Department of Land and Natural Resources, as well

as the Secretary of the Army, the District Director of the

Army Corps of Engineers, the Regional Administrator of

the United States Environmental Protection Agency, the

Director of Health of the State of Hawaii, and Transconti-

nental Development Company, and ATPAC Land Com-

pany, the developers and landowners of the then-

proposed Waikoloa Beach Resort on the Big Island of

Hawaii. Pet. App. 52. In addition to challenging the

developers’ proposed dredging of roughly eighty

anchialine ponds along the West Hawaii Coasts as insuffi-

ciently justified under the Clean Water Act and the

National Environmental Policy Act, Plaintiffs claimed the

construction of the Resort would lead to “loss of approx-

imately 2-3 acres of ceded lands which were abandoned

by the state when it altered the certified shoreline of

Waiulua Bay.” Id. at 59. Napeahi alleged his standing to

challenge the development arose from his status as a

native Hawaiian “who has frequented the area” for the

purpose of gathering “fish, opae, and other marine food

products” for “subsistence purposes, to camp, and to

enjoy the aesthetic, open space, marine, and terrestrial

resources of the area.” Id. at 54. Prior to the hearing of the

State Defendants’ motion to dismiss, Plaintiffs voluntarily

dismissed all claims but that related to the alleged “aban-

donment of ceded land caused by the alteration of the

certified shoreline by the Department of Land and Natu-

ral Resources, use of fill land in Waiulua Bay, and the

filling and future commercial use of these submerged

lands by the private Defendants, without remuneration to

the State.” Id. at 64, 90. In this claim, Plaintiffs alleged

that the Department of Land and Natural Resources “vio-

lated Section 5(f) of the Admissions Act, and Plaintiff

Napeahi is entitled to damages from uncompensated loss

of these lands.” Id. at 64.

2. Over motions to dismiss, which sought absten-

tion under Burford v. Sun Oil Co., 319 U.S. 315 (1943), in

light of the State’s “extensive real property regulatory

system” related to coastal zone management (Chs. 205

and 205a, Haw. Rev. Stat.), claimed that Plaintiff's

“breach of trust” claim violated the Eleventh Amend-

ment, and challenged, as contrary to established prece-

dent holding that § 5(f) did not create a private right of

action (i.e., Keaukaha I, supra, 588 F.2d 1216 (9th Cir.

1978)), the District Court dismissed all parties but Peti-

tioner and allowed the filing of a Second Amended Com-

plaint, following dicta in the Ninth Circuit’s statement in

Price v. State of Hawaii, 764 F.2d 623, 629 (9th Cir. 1985),

that “the [private] enforcement of the § 5(f) compact

presents a federal question under 28 U.S.C. § 1331(a),”

thus reasoning that the Ninth Circuit would, under its

precedents, specifically Keaukaha-Panaewa Community

Association v. Department of Hawaiian Home Lands, 739 F.2d

1469, 1472 (9th Cir. 1984) (“Keaukaha II”), allow a claim for

enforcement to be made under 42 U.S.C. § 1983. Pet. App.

21. Thereafter, the Sierra Club and Audubon Society

dropped from the case, and the remaining parties (Peti-

tioner and Respondent) conformed their pleadings to this

ruling. Pet. App. 94-104. The case went to trial, where

Respondent lost on the ground that no 5(f) duties had

ever arisen since the lands at issue had been granted in

1881 by King Kamehameha III to his wife, Queen Kalama,

Pet. App. 27 (conclusion No. 8), and that, under the

Hawaii Supreme Court’s reading of the bounds of the

State’s title to submerged lands conveyed under the

Equal Footing Doctrine, In re Ashford, 50 Haw. 314 (1968),

and County of Hawaii v. Sotomura, 55 Haw. 176 (1973),

“plaintiff has failed to meet his burden to prove that by

on or before July 7, 1898, the disputed tidal pools lay

below the upper reaches of the wash of the waves,” and

therefore had been transferred by erosion of the shoreline

to the United States upon annexation. Id. at 27-28 (conclu-

sion Nos. 13-14). The court also found that “[t]he instant

case does not concern an inchoate property right,” and

therefore the 5(f) trust was not augmented in the period

between annexation and Statehood under the legal theory

that the right to future accretions in the scope of sub-

merged lands belonged to the sovereign. Id. at 28 (conclu-

sion No. 16 (contrasting State v. Zimring, 58 Haw. 106

(1977) (post-annexation lava extensions became vested in

the United States prior to statehood))).

3. The court of appeals held Respondent’s appeal

for more than two years after argument, during which

time the Ninth Circuit entertained Price v. Akaka, 915 F.2d

469 (9th Cir. 1990), in which the standing of native

Hawaiians to sue with respect not merely to the restricted

subset of 5(f) lands conveyed by the Hawaiian Homes

Commission Act, see Keaukaha II, supra, but with respect

to all 5(f) lands, was at issue. On September 25, 1990, the

court of appeals issued its opinion in the Akaka case,

ruling that such persons did have standing notwithstand-

ing that state officials “may, consistently with § 5(f),

spend the income [or dispose of the land] for purposes

other than to benefit native Hawaiians.” 915 F.2d at 471.

The court reasoned that, because, as a matter of state law,

native Hawaiians might be able to show constraints on

the ability of state officials, if the native Hawaiian plain-

tiffs “succeed[] in proving that the trustees have misap-

propriated § 5(f) income and must return it,” the

plaintiffs would be sufficiently benefitted to justify the

invocation of Article III standing. Id. at 471 n.2. The Akaka

panel then went further, holding that § 5(f) “ ‘creates a

federal “right” enforceable under 42 U.S.C. § 1983’ ” as to

all 5(f) assets. Id. at 472. Based on these rulings, the panel

below held that Respondent, “as a native Hawaiian and

beneficiary of this public trust, does have standing to

enforce its provisions.” Napeahi v. Paty, 921 F.2d 901 n.2

(Pet. App. 7). The panel below then went on to overrule

the District Court’s reading of the state law doctrines of

accreted rights to submerged lands and held that further

factfinding was necessary to determine if the lands at

issue had become submerged by erosion in the period

after 1898, and “before the physical alteration of the area

by the property owners,” and had thereby entered the

5(f) trust corpus. The court instructed the trial judge, on

making the required findings, to enter “an appropriate

judgment” on the equitable relief sought. Id. at 903-04,

Pet. App. 14.

REASONS FOR GRANTING THE WRIT

The expansive federal judicial role in managing

Hawaii's public trust lands charted by the courts below is

not limited to the Waikaloa Beach Resort’s 1.75 acres of

oceanfront property, but portends the imposition of intru-

sive federal judicial oversight, at the behest of any private

litigant with an interest in state land management, over

literally millions of acres of trust lands in the Western

States.2 The Ninth Circuit’s novel decision cannot be

2 In the Ninth Circuit alone, public land trust provisions

are set forth in the admission acts of at least seven States, in

(Continued on following page)

logically limited to suits brought by native Hawaiians, or,

indeed, suits involving only Hawaii’s submerged lands, or

even Hawaii's public trust lands. For as this Court has

recognized, numerous States, upon their admission to the

Union, have been granted lands for various trust purposes,

and, while “[plerhaps” “the conditions of the grants are still

enforceable by the United States,” it is at least doubtful

whether suits “by third parties” were intended. Papasan v.

Allain, 478 U.S. 265, 291 n.18 (1986). Permitted to stand, the

judgment of the court of appeals will have, absent congres-

sional intervention, wide-ranging, permanent effects upon

the economic, social and political development of Hawaii

and numerous other States.

Coming in an area where, as this Court’s decisions

have emphasized, State prerogatives are at their height,

and “the strong presumption is against finding an intent

to defeat the State’s title,” Utah Division of State Lands v.

United States, 482 U.S. 193, 201 (1987), the court of

appeals’ judgment in this case presents an intolerable

conflict with the “case-or-controversy” doctrines that

state “fundamental limits on federal judicial power in our

system of government.” Allen v. Wright, 468 U.S. 737, 750

(1984). Therefore, even assuming that the 1.75 acres at

issue “belongs” to the 5(f) trust, as the four-Justice plu-

rality observed in a virtually identical situation in

ASARCO, Inc. v. Kadish, 490 U.S. 605 (1989), given the

broad discretion granted Hawaii under its Admission

(Continued from previous page)

addition to Hawaii. See § 6(a), (f), and (j) of the Alaska Admis-

sion Act, 72 Stat. 339, 340-341 (1958), §§ 7, 8, 9, and 10 of the

Arizona-New Mexico Enabling Act, 36 Stat. 557, 562-65 (1910);

§§ 4-13 of the Idaho Admission Act, 26 Stat. 215, 215-16 (1890);

§§ 10-13 of the North Dakota-South Dakota-Montana-Washing-

ton Enabling Act, 25 Stat. 676, 679-80 (1889); §§ 7-10 of the

Nevada Enabling Act, 13 Stat. 30, 32 (1864); and § 4 of the

Oregon Admission Act, 11 Stat. 383 (1859).

ee I nated Sl

Vee =e et CUR ee tw

Act, this action’s jurisdictional foundation rests on “pure

speculation whether the lawsuit would result in any actu-

al... relief.” Id. at 614 (Kennedy, J., joined by Rehnquist,

C.J., and Stevens and Scalia, JJ.). As such, Article III

power is lacking, and the complaint ought to have been

dismissed. See, e.g., Simon v. Eastern Kentucky Welfare

Rights Org., 426 U.S. 26 (1976).

The lower court’s summary treatment of the District

Court’s jurisdiction also overlooked the important con-

straints of the Eleventh Amendment. Even if those who

could only speculate they would benefit from public trust

lands could sue under Article III, the relief necessary to

erfect the goal of the suit, “a one-time restoration of the

lost corpus itself,” has been properly characterized by

this Court as an impermissible award “of ‘an accrued

monetary liability,” Papasan v. Allain, 478 U.S. at 281,

and, at a very minimum, the impermissible unconsented

trial of a State’s “title” in a private suit in the federal

courts. See Florida Dep’t of State v. Treasure Salvors, Inc., 458

U.S. 670, 700 (1982) (plurality opinion). For this addi-

tional reason, the judgment below should be reviewed

here. .

Third, the judgment below, like that at issue in Suter

v. Artist M., No. 90-1488 (U.S. cert. granted May 13, 1991),

presents at the very least the question whether “courts

may create rights [under 42 U.S.C. § 1983] from congres-

sional silence only after reviewing the statute, its legisla-

tive history, and the implementing regulations to

determine whether the statute is sufficiently mandatory

and specific to evince a congressional intent to create

privately enforceable rights,” Pet. for Cert. at 6-7, No.

90-1488 (U.S. filed Mar. 20, 1991), and, indeed, presents

perhaps the most compelling instance where remedies

under 42 U.S.C. § 1983 were not - and should not be

deemed to have been - intended by Congress. Standing

alone, § 5(f) requires only that trust lands be made available

“for public use,” a broad and amorphous standard that is

“coterminous with the scope of a sovereign’s . .

powers,” Hawaii Housing Authority v. Midkiff, 467 U.S. 229,

240 (1984). Likewise, to the extent the judgment rests on the

particular requirements of “the constitution and laws” of

Hawaii referred to in § 5(f), the decision below is equally

flawed, for “there is no authority anywhere supporting the

proposition that a state [law] becomes a federal law merely

by virtue of its inclusion in a state plan required by federal

law.” Oberlander v. Perales, 740 F.2d 116, 119 (2d Cir. 1984).

Indeed, given the history and purpose of the Admission Act,

the lack of any ongoing federal financial support of Hawaii’s

efforts to meet its trust obligations, and the provision of a

' specific remedy in the statute itself, the judgment below

violates both parts of this Court’s two-step test to determine

if statutory provisions are enforceable under 42 U.S.C.

§ 1983, see, e.g., Dennis v. Higgins, 111 S. Ct. 865, 871 (1991);

Wilder v. Virginia Hospital Association, 110 5. Ct. 2510, 2517

(1990), and creates an anomalous expansion of liability under

§ 1983, one certainly never contemplated by Congress, and

undoubtedly not understood as part of the terms of admis-

sion into the Union.

For this reason, and others, the lower courts also

erred in failing to abstain under Burford v. Sun Oil Co., 319

U.S. 315 (1943), or certify questions to the state court

under Railroad Comm'n of Texas v. Pullman Co., 312 U.S.

496 (1941), which could moot the underlying federal

issues in this case.

Certiorari should at a minimum be granted to permit

an authoritative resolution of these important questions

of jurisdiction and federalism, which permeate a substan-

tial number of cases in the state and federal courts,? and

3 There are presently pending no fewer than six active

suits in the state and federal courts which raise identical or

related issues solely with respect to Hawaii’s public trust

(Continued on following page)

which threaten disruption if not paralysis of the State of

Hawaii’s management of its perhaps most precious assets

- its public trust lands.

I. The Ninth Circuit’s Expansive Invitation to Suits

Seeking To Manage Hawaii’s Public Trust Lands

Raises Substantial Questions Under Article III and

the Eleventh Amendment Which Merit this Court’s

Review and Reversal.

As this Court has made clear on numerous occasions,

each federal appellate court is under “a special obligation

to ‘satisfy itself not only of its own jurisdiction, but also

that of the lower courts in a cause under review,’ even

though the parties are prepared to concede it.’ ” Bender v.

Williamsport Area School District, 475 U.S. 534, 541 (1986).

Although it acknowledged this precept, see 921 F.2d at

901 n.2, the Ninth Circuit erred on two separate, but

related, fronts in concluding that the District Court could

consider Respondent's trust claim.

A. The Ninth Circuit’s Allowance of Land Trust

“Beneficiary” Standing Conflicts With This

Court’s Precedents, or, at the Very Least Raises

Substantial Issues that Merit Review Here.

In holding that “Napeahi, as a native Hawaiian and

beneficiary of this public trust, does have standing to

(Continued from previous page)

lands. In addition to this action, see, e.g., Price v. Akaka, No.

88-773 (D. Haw. filed Oct. 18, 1988), remanded, 928 F.2d 824 (9th

Cir. 1991), pet. for cert. to be filed sub nom. Akaka v. Price (U.S.

June 19, 1991); Price v. Hawaii, No. 89-0561 (D. Haw. filed July

21, 1989), argued, No. 90-15117 (9th Cir. June 11, 1991); Naltielua

v. State of Hawaii, No. 90-63 (D. Haw. filed Feb. 2, 1990), argued,

No. 90-15842 (9th Cir. June 10, 1991); Kepoo v. Burgess, No.

88-2987-09 (Haw. Cir. filed Sept. 23, 1988), argued, No. 14770

(Haw. June 13, 1991); Pele Defense Fund v. State of Hawat, No.

89-89 (Haw. 3d Cir. filed Mar. 20, 1989).

enforce its provisions,” 921 F.2d at 901 n.2, Pet. App. 7,

the court below relied on notions of Article III power that

have long been discredited, or which at least raise sub-

stantial issues regarding “the proper - and properly lim-

ited — role of the courts in a democratic society.” Warth v.

Seldin, 422 U.S. 490, 498 (1975).

In so holding, the court relied upon its earlier decision

in Price v. Akaka, 915 F.2d 469 (9th Cir. 1990), which in turn

had relied on the “ ‘injury in fact’” analysis of Price v.

Hawaii, 764 F.2d 623 (9th Cir. 1985), cert. denied, 474 U.S. 1055

(1986) (“Price I’). In Price I, the Ninth Circuit, citing Associa-

tion of Data Processing Service Organizations, Inc. v. Camp, 397

U.S. 150 (1970)), adopted, in dicta, a broad reading of the

“injury in fact” requirement, allowing claims by potential

trust beneficiaries to be heard as to whether the State had

violated § 5(f) in funding “other purposes than section 5(f)’s

‘the betterment of native Hawaiians.’ ” 764 F.2d at 630. Thus,

even though the court conceded native Hawaiians “have no

right to any trust funds,” they nonetheless had standing. Id.

The reasoning of the Ninth Circuit in its 5(f) cases is

at odds with this Court’s more recent elaboration of the

“core component” of Article III standing, namely, a “per-

sonal injury fairly traceable to the defendant's allegedly

unlawful conduct and likely to be redressed by the

requested relief.” Allen v. Wright, 468 U.S. 737, 751 (1984).

Indeed, in ASARCO, Inc. v. Kadish, 490 U.S. 605 (1989),

four Justices (Kennedy, J., joined by Rehnquist, C.J., and

Stevens and Scalia, JJ.), joined in an opinion directly

rejecting the panel’s analysis as to standing:

[E]ven if invalidation of the state law would

create increased revenue for the school trust

funds in the near future, an issue much disputed

here, the allegations of economic harm rest on

the same hypothetical assumptions as the tax-

payer claims. If respondents prevailed and

increased revenues from state leases were avail-

able, maybe state taxes would be reduced, or

maybe the State would reduce support from

ARIA Ae nit tae Biased

ee ee ee

other sources so that the money available for

schools would be unchanged.*Even if the State

were to devote more money to schools, it does not

follow that there would be an increase in teacher

salaries or benefits. These policy decisions might

be made in different ways by the governing offi-

cials, depending on their perceptions of wise state

fiscal policy and myriad other circumstances.

Whether the association’s claims of economic

injury would be redressed by a favorable decision

in this case depends on the unfettered choices

made by independent actors not before the courts

and whose exercise of broad and legitimate discre-

tion the courts cannot presume either to control or

to predict. We have much less confidence in con-

cluding that relief is likely to follow from a favor-

able decision here than we had in cases like Allen v.

Wright, 48 U.S. 737 (1984), and Simon v. Eastern

Kentucky Welfare Rights, Organization, 426 U.S. 26

(1976), where standing was found to be lacking

because the probable response of private individ-

uals to explicit tax incentives was judged to be too

uncertain to satisfy . . . federal standing require-

ments.

490 U.S. at 614-15.

The four-Justice plurality’s approach to standing in

the case of Arizona’s Enabling Act correctly elaborates

the dictates of Article III in this important context, and

the Court should grant certiorari in this case and so hold.

Even if Hawaii law is relevant to Respondent's federal

standing, it is clear that no Hawaii citizen has any claim

to a particular constellation of benefits from the 5(f)

corpus. Even native Hawaiians, who are the special bene-

ficiaries of trust funds created under State law and

administered by the Office of Hawaiian Affairs, see Haw.

Rev. Stat. § 10-13.5 (Supp. 1990),4 have no particular

4 As to claims by native Hawaiians, the Supreme Court of

Hawaii has determined that, as of 1987, there were no

(Continued on following page)

entitlement to 5(f) funds, as the Office of Hawaiian

Affairs, like any legislative body, enjoys the discretion

rationally to pick and choose from among those native

Hawaiian trust beneficiaries most in need of aid. As the

ASARCO plurality states, Respondents’ standing is even

less suited to generating the constitutionally required

“case” or “controversy” then in Allen v. Wright, 468 U.S.

737 (1984), and Simon v. Eastern Kentucky Welfare Rights

Org., 426 U.S. 26 (1976), for, in order to uphold the

exercise of Article II] power here, the Court must be

prepared to entertain a host of suits challenging manage-

ment of the Government's fiscal operations that may

redound to the detriment of particular groups and indi-

viduals. This is not the law. Indeed, at the very least, the

Ninth Circuit’s reasoning in its 5(f) cases, namely that if a

5(f) trust breach can be shown, Respondent could show

“that the returned money must be used to benefit native

(Continued from previous page)

“judicially discoverable and manageable standards’” for

determining the revenues to which OHA was entitled. Trustees

of the Office of Hawaiian Affairs v. Yamasaki, 69 Haw. 154, 737

P.2d 446, cert. denied, 484 U.S. 898 (1987). In 1990, the Legisla-

ture redrafted OHA’s enabling legislation and made changes to

other parts of the statutes to clarify, prospectively, the “reve-

nues” from 5(f) lands that are to be allocated to OHA. How-

ever, these clarifications are subject to further legislative

review, and, in any case, the 1990 amendments make clear that

OHA is not entitled to the maximization of revenue from 5(f)

lands, nor to transfer of the title or use rights in any 5(f) land.

See §§ 3, 7, and 9 of the Act of July 3, 1990, Ch. 304, 1990 Haw.

Sess. L. 947, 948-49, 951, 952. Likewise, the 1990 amendments

reaffirm OHA’s discretion to create programs with 5(f) revenue

that rationally exclude various groups of its native Hawaiian

beneficiaries from government benefits, and thereby to deny

completely to certain native Hawaiians benefits flowing from

the 5(f) trust corpus. (Similar discretion is likewise retained by

Petitioner with respect to 5(f) proceeds not subject to the OHA

trust, i.e., Haw. Rev. Stat. § 171-18.)

Hawaiians,” see Akaka, 915 F.2d at 471 n.2, cited, Napeahi,

921 F.2d at 901 n.2, is at odds with Allen’s rejection of this

sort of “group” standing. 468 U.S. at 756. Just as litigants

cannot invoke the jurisdiction of the federal courts when

the likelihood of personal redress turns on contingent

events in the judicial system, see Whitmore v. Arkansas, 110

S. Ct. 1717, 1725 (1990)5 legal claims which depend for

their constitutional concreteness on essentially legislative

choices are not proper subjects of the federal judicial

power.

Indeed, insofar as Respondent seeks to compel the

State to take action against the private owners of the

Waikoloa Beach Resort, cf., 921 F.2d at 899, Pet. App. 3,

with Second Amended Complaint at 6, Pet. App. 99-100,

Respondent’s suit runs into the independent rule that a

private citizen has no standing regarding a State’s deci-

sion to prosecute “when he himself is neither prosecuted

nor threatened with prosecution.” Linda R.S. v. Richard D.,

410 U.S. 614, 619 (1973). Continued maintenance of this

suit, and suits like it, fundamentally threatens not only

State legislative, but also executive power to decline pros-

ecution of civil claims, see Heckler v. Chaney, 470 U.S. 821

(1985) (on prosecutorial discretion), in conflict with Arti-

cle III’s concern for federalism and separation of powers

principles. See Allen vu. Wright, 468 U.S. at 760-61.

For these reasons, the Court should grant the Peti-

tio, and summarily vacate the judgment below with

instructions to dismiss the complaint, or at the least grant

plenary review to consider the important and recurring

> The analogy to the Article III analysis in Whitmore is

even more pronounced, since the owners of the Waikoloa

Beach Resort have not been maintained in the suit, and, there-

fore, any remedy against them must, at the least, be reviewed

further, presumably a federally compelled lawsuit for back rent

or ejectment. Since the private owners are not parties, they

would not be bound by any ruling here. Martin v. Wilks, 490

U.S. 755, 759-65 (1989).

questions of federal judicial power under Article III of the

federal Constitution.

B. The Ninth Circuit’s Judgment Allowing

Respondent’s Suit to Proceed Independently

Conflicts with Settled Principles of Immunity

Under the Eleventh Amendment.

In allowing Respondent to proceed further, the court

below overlooked not only the mandates of Article III,

but also those of the Eleventh Amendment. As this Court

has noted on many occasions, the Amendment “partakes

of the nature of a jurisdictional bar,” see Pennhurst State

School & Hospital v. Halderman, 465 U.S. 89, 95 (1984)

(quoting Edelman v. Jordan, 415 U.S. 651, 678 (1974)). The

defense of sovereign immunity embodied in the Amend-

ment “ ‘need not be raised in the trial court,’ ” see Ala-

bama v. Pugh, 438 U.S. 781, 782 n.1 (1978) (per curiam),

and in this instance a specific Eleventh Amendment

objection was made both by answer, and motion, below.

See Pet. App. 76, 86.

While acknowledging that the owners of the Waik-

aloa Beach Resort have been dismissed, and “the injunc-

tion and declaratory remedies sought by Napeahi would

only affect the State in relation to the beneficiaries of the

trust,” 921 F.2d at 899, the court of appeals failed to

appreciate that the only immediate remedy available in

the absence of the private owners would be the very sort

of “breach of trust” relief this Court held, in Papasan v.

Allain, 478 U.S. 265 (1986), is impermissible under the

Eleventh Amendment.® Just as in Papasan, any suit

against the Director of Land and Natural Resources in his

4, un

6 The District Court’s ruling on the motion to dismiss

came on June 20, 1986, see Pet. App. 15, approximately twelve

days before this Court handed down its decision in Papasan. As

noted above, the failure to raise the Eleventh Amendment in

the Court of Appeals does not prevent reversal here. See Pugh,

supra.

Ce nae te ee eee Sere ee

official capacity would amount to “a substitute for the

return of the trust corpus itself,” id. at 281, and thus be

jurisdictionally barred.

In addition, the judgment below is independently

infected by Eleventh Amendment error insofar as

Respondent’s entire case depends upon the litigation of

the state’s title in federal court. Irrespective of whether

the relief prayed for falls on the retrospective (and hence

impermissible) side of the line, see Papasan, 478 U.S. at

278-79, such suits, even those that would, in the guise of a

§ 1983 claim, expand the scope of the State’s claimed title,

cannot be heard in federal court. See Florida Dep't of State

v. Treasure Salvors, Inc., 458 U.S. 670, 700 (1982) (plurality

opinion). Nothing in the jurisprudence of the Eleventh

Amendment permits the federal courts to serve as fora

for quiet title actions against the respective States.

indeed, this is particularly so when the operative issues

turn on novel theories of state law. See generally Pennhurst

State School & Hospital v. Halderman, 465 U.S. 89, 119-20

(1984).

Thus, even if Respondent’s claims successfully hur-

dled Article III, the Court should independently grant

review to correct the plain Eleventh Amendment defect in

the judgment below.

II. The Court Should Grant Review to Correct the

Court of Appeals’ Expansive Reading of 42 U.S.C.

§ 1983 for Enforcement of the States’ Trust Duties

Under Their Admission Acts.

The court of appeals’ judgment that it was the federal

District Court’s business to adjudicate Hawaii's title to

the land now being used by the Waikaloa Beach Resort

additionally rested on the idea “that ‘§ 5(f) of the Admis-

sion Act creates a federal ‘right’ enforceable under 42

U.S.C. § 1983,’ ” Price v. Akaka, 915 F.2d at 472, cited, 921

F.2d at 901 & n.2. Indeed, no other conclusion could be

possible, ior as this Court observed in Oregon ex rel. State

Land Board v. Corvallis Sand & Gravel Co., 429 U.S. 363

(1977), “{uJnder our federal system, property ownership

is not governed by general federal law, but rather by the

laws of the several States,” “unless some other principle

of federal law requires a different result.” Id. at 378. In

Keaukaha I, 588 F.2d 1216 (9th Cir. 1978), the Ninth Circuit

held § 5(f) does not create a private right of action;

Respondents, and the courts below, therefore relied

exclusively on the later ruling in Keaukaha II, 739 F.2d

1467 (9th Cir. 1984), namely, that § 5(f) was enforceable,

with respect to the distinct subset of 5(f) lands conferred

pursuant to the Hawaiian Homes Commission Act, via

§ 1983. See 739 F.2d at 1471-72 and Pet. App. 99.

The lower courts’ allowance of § 1983 suits to enforce

the Admission Act with respect to all 5(f) lands presents

important questions which should be reviewed by this

Court. Indeed, it is dubious whether this case presents a

federal question at all, for it has long been the rule that

federal quiet-title actions like this are unavailable, for “a

suit involving rights to land acquired under a law of the

United States” does not “arise under” federal law, for, if it

did, “every suit to establish title to land in the central and

western States would so arise, as all titles in those States

are traceable back to those laws.” Shulthis v. McDougal,

225 U.S. 561, 569-70 (1912).

The issue here is, at a minimum, as compelling as

those in Suter v. Artist M., No. 90-1488 (U.S. cert. granted

May 13, 1991). Worded more broadly than the Adoption

Assistance Act, § 5(f)’s “public use” clause allows action

to and including the limit of the State’s constitutional

power, and does not require obedience to “an ‘objective

benchmark’ of an ‘efficiently and economically operated

facility,’ ” Pet. for Cert. at 14, No. 90-1488 (quoting Wilder

v. Virginia Hospital Ass'n, 110 S. Ct. 2510, 2522-23 (1990)).

Rather, “ ‘whether in fact the [state’s action] will accom-

plish its objectives is not the question.’ ” Hawaii Housing

Authority v. Midkiff, 467 U.S. 229, 242 (1984). Section 5(f)

is, likewise, bereft of “legislative history indicating Con-

gress’ intent to create specific, enforceable rights.” See

NE i a ele ee aR, ne

i eel amet

eS ee ee

Pet. for Cert. at 15, No. 90-1488 and 588 F.2d at 1223. As

did the Seventh Circuit’s ruling with respect to Title IV-E

of the AAA, that here “creates enforceable rights on

behalf of a class of citizens for whom [Hawaii] receives

not one dollar of federal reimbursement.” Pet. for Cert. at

19, No. 90-1488. Needless to say, Congress did not, and

has not, provided appropriations to support programs to

assure that land management decisions in Hawaii maxi-

mize revenue, or, as is alleged by Respondent, do not

“abandon” the trust corpus.

Although one prudent option is to hold this Petition

pending decision in Suter v. Artist M., review should be

granted here regardless of the outcome in that case

because the present expansion of § 1983 raises issues that

are qualitatively more disturbing than any of the pre-

vious challenges raised by States to invoking § 1983 as a

means to enforce federal statutes. For in perhaps no other

area has state sovereignty, and the freedom from federal

interference, been more jealously guarded by this Court

than with respect to the grants of title to those lands that

literally make the newly admitted States what they are.

As this Court emphasized in Utah Division of State

Lands v. United States, 482 U.S. 193 (1987), when it has

come to efforts to burden a State’s title to lands conveyed

by admission to the Union, “the strong presumption is

against finding an intent to defeat the State’s title,” and,

thus, a court “cannot infer that Congress intended to

defeat a future State’s title” “ ‘unless the intention was

definitely declared or otherwise made very plain.’ ” Id. at

201-02. While, on a superficial level, Respondent seeks to

“add to,” rather than “defeat” State title, fundamental

notions of property as a set of entitlements to, or immu-

nities from, judicial interference render the Utah pre-

sumption applicable. Indeed, the presumption against

implied “reserved” federal control over state trust lands

is even more forceful here, where lands have been granted

by express language in the Admission Act rather than, as

was Utah’s case, by reason of the judge-made Equal

Footing Doctrine for submerged lands. As the Court

observed in Phillips Petroleum Co. v. Mississippi, 484 U.S.

469 (1984), “it has long been established that the individ-

ual States have the authority to define the limits of the

lands held in public trust and to recognize private rights

in such lands as they see fit.” Id. at 475. The decision

below threatens serious erosion of this fundamental legal

principle.

In addressing the § 1983 enforcement problems in

this context, the Ninth Circuit has lost sight of this funda-

mental principle in answering the two-part inquiry this

Court’s precedents have set forth for defining enforce-

ment by § 1983 of statutory rights. Thus, while it may go

without saying that “[a] plaintiff alleging a violation of a

federal statute will be permitted to sue under § 1983

unless (1) ‘the statute [does] not create enforceable rights,

privileges, or immunities within the meaning of § 1983,’

or (2) ‘Congress has foreclosed such enforcement in the

enactment itself,’ ” Wilder v. Virginia Hospital Association,

110 S. Ct. 2510, 2517 (1990), this Court’s decisions have

always answered such questions in light of the principles

at stake in the particular context at issue. By ignoring the

overriding considerations of state sovereignty and feder-

alism at issue when dealing with a State’s admission act,

the Ninth Circuit has misinterpreted this Court’s prece-

dents, and incorrectly applied both prongs of the test for

allowing § 1983 enforcement.

Thus, in ascertaining whether a statute confers

“enforceable rights,” this Court has first considered

“ ‘whether the provision in question creates obligations

binding on the governmental unit or rather “does no

more than express a congressional preference for certain

kinds of treatment.” ’” Dennis v. Higgins, 111 S. Ct. 868,

871 (1991). Yet in determining whether such obligations

were imposed this Court has found it critical whether

Congress has “condition[ed] federal funding on compli-

ance” with the directive at issue. Wilder, 110 S. Ct. at 2518.

Even viewing this test charitably to Respondent, nothing

in the Admission Act suggests that 5(f) lands could revert

to the United States in a suit brought by the United States

under its enforcement power. Even more so than in Pen-

nhurst State School and Hospital v. Halderman, 451 U.S. 1

(1981), § 1983 enforcement was not, and should not be

deemed, intended, since Congress has provided no appro-

priations “to meet the enormous financial burden” of

assuring the 5(f) corpus is “correctly” administered. Wil-

der, 110 S. Ct. at 2518 n.10, and Pet. for Cert. at 19-20, No.

90-1488. Likewise, in determining whether the rights at

stake were “ ‘too vague and amorphous’ to be beyond the

competence of the judiciary to enforce,” Wright v. Roanoke

Redevelopment and Housing Authority, 479 U.S. 418, 431-32

(1979), the Court has recognized a “critical inquiry” (see

Wilder, 110 S. Ct. at 2517) as whether Congress has spoken

so clearly that “we can fairly say that the state could

make an informed choice” as to its actions. Tennhurst, 451

U.S. at 25. Here, all Congress has mandated under the

“one or more” clause is that Hawaii devote lands to a

“public use,” a term that grants the broadest possible

discretion, and which does not require that the land “be

put into use for the general public.” Hawaii Housing

Authority, 467 U.S. at 244. Similarly, this Court has “

‘asked whether the provision in question “intend[ed] to

benefit” the putative plaintiff.’ ” Dennis, 110 S. Ct. at 871.

Under the Ninth Circuit’s own precedents, this should

have required dismissal, as the general obligation of § 5(f)

“does not benefit any class narrower than all citizens of

Hawaii.” See 588 F.2d at 1223.

While the “constitution and laws” of Hawaii referred

to in § 5(f) undoubtedly provide more specific constraints

on state officials, nothing in this Court’s jurisprudence

permits, as Respondent evidently contends, that such

constraints are actionable under § 1983. Indeed, as the

Second Circuit has held, “there is no authority anywhere

supporting the proposition that a state [law] becomes a

federal law merely by virtue of its inclusion in a state

plan required by federal law.” Oberlander v. Perales, 740

F.2d 116, 119 (2d Cir. 1984). At a very minimum, certiorari

is justified to resolve this conflict in circuit approach to

§ 1983, as well as departure from the principles of Pen-

nhurst State School v. Halderman, 465 U.S. 89 (1984).

Similarly, the Ninth Circuit’s conclusion that the lack

of alternative private remedies requires resort to § 1983

(see 739 F.2d at 1471) inverts the reasons for precluding

§ 1983 suits when Congress has done so “in the statute

itself.” Indeed, it could not be more anomalous to allow

citizen suits to enforce the Admission Act via § 1983,

because § 1983 could not have been part of the remedial

scheme when Hawaii's trust lands were administered by

the United States pursuant to the Organic Act, see

Ngirangas v. Sanches, 110 S. Ct. 1737 (1990), and, hence,

there was no § 1983 suit to be “withdrawn.” Cf. Wilder,

110 S. Ct. at 2524 & n.19 (“Congress believed that a

private judicial remedy existed before passage of the

Boren Amendment”); Wright, 479 U.S. at 423 (affirmative

evidence of congressional intent that “enforcement

authority is not centralized and that private actions were

anticipated”). The Ninth Circuit’s reasoning makes non-

sense of the law, and would allow § 1983 enforcement in

cases where Congress made clear it intended no private

suits.

Thus, even if the lower courts had jurisdiction, the

Court should grant the petition, vacate the judgment of

the court of appeals, and remand with instructions to

dismiss the action.

III. The Court Should Grant Review To Correct the

Court of Appeals’ Failure to Dismiss or Abstain

Pending the State Courts’ Resolution of the Under-

lying Ownership Issue Here.

The uncharted waters sailed by the court of appeals

might never have had to have been crossed had the

courts below sought to consult the Hawaii courts as to

the difficult and important question concerning whether

the rule of inchoate state ownership announced in State v.

Zimring, 58 Haw. 106, 566 P.2d 725 (1977), which dealt

with the State’s claims to fast land created by post-annex-

ation lava flows, applied, and, if so, how, to changes in

seaward boundaries caused by erosion of the shoreline.

This central question, which the parties and the courts

below properly treated as one of state law, see Phillips

Petroleum Co. v. Mississippi, 484 U.S. at 469-84, as indi-

cated by the diverging opinions of the District Court and

the three-judge panel, is not authoritatively answered by

any Hawaiian precedent, and, if answered by Hawaii's

courts, could have mooted the entire case.

While the District Court rejected abstention (see Pet.

App. at 21-22), it did so on the view only Younger absten-

tion (see Younger v. Harris, 401 U.S. 37 (1971), was

invoked. In fact, however, Petitioner emphasized that

dismissal properly lay under Burford v. Sun Oil Co., 318

U.S. 315 (1943)). Burford’s bar on interference with

administrative orders emanating from a unified regula-

tory scheme overseen by the state courts (namely

Hawaii's shoreline certification process (Haw. Rev. Stat.

Ch. 205)) was fully in play. Judicial review was available

promptly under the Hawaii Administrative Procedure

Act, Haw. Rev. Stat. Ch. 91, and Ninth Circuit’s accep-

tance of Respondent’s argument on the merits, which

may call into doubt decisions and practices affecting hun-

dreds of miles of shoreline in Hawaii, threatens precisely

the “ ‘misunderstanding of local law and needless federal

conflict with the state policy’ ” to which the Burford doc-

trine is targeted. See Pennhurst II, 465 U.S. at 122 n.32

(1984) (quoting Burford). At a very minimum, the lower

court ought to have certified, pursuant to Haw. R. App. P.

13 and the rule of Railroad Comm'n v. Pullman Co., 312 US.

496 (1941), the state law question at issue. See Virginia v.

American Booksellers Ass'n, 484 U.S. 383, 395-96 (1988). In

failing to take any step to consult the state courts, the

lower courts wrongly ignored the “complex of consider-

ations designed to soften the tensions inherent in a sys-

tem that contemplates parallel judicial processes.”

Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 11 n.9 (1987). For

this added reason, the Court should grant the petition for

certiorari.

CONCLUSION

For the foregoing reasons, the Court should grant the

petition for certiorari and ultimately vacate the opinion

and judgment of the court of appeals and remand with

instructions that the Second Amended Complaint be dis-

missed, or with instructions to abstain pending a certified

question proceeding in the Supreme Court of Hawaii

under its Appellate Rule 13.

Because of the relatedness of the second Question

Presented to those at issue in Suter v. Artist M., No.

90-1488 (U.S. cert. granted May 13, 1991), the Court may

wish to hold the Petition pending the disposition in that

case. The Court may also wish itself to certify to the

Supreme Court of Hawaii the question whether the court

of appeals was correct in its determination of the appli-

cability of Hawaii law to the facts of this case.

Dated: Honolulu, Hawaii, June 18, 1991.

WARREN Price, III”

Attorney General

State of Hawaii

*Counsel of Record

STevEN S. MICHAELS

Epwin P. Watson

Deputy Attorneys General

State of Hawaii

425 Queen Street

Honolulu, Hawaii 96813

(808) 586-1365

Counsel for Petitioner

APPENDIX “A”

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Mervin Napeaui, individually and

on behalf of all those similarly

situated,

No. 87-1844

Plaintiff-Appellant, D.C. No.

ww CV-85-1523-HMF

WILLIAM Paty, in his capacity as OPINION

Director of the Department of

Land and Natural Resources,

State of Hawaii,

Defendant-Appellee.

ee ee ee ee ee ee ee ee ee ee

Appeal from the United States District Court

for the District of Hawaii

Harold M. Fong, Chief District Judge, Presiding

Argued and Submitted

December 13, 1988 — San Francisco, California

Filed December 18, 1990

Before: Procter Hug, Jr., Thomas Tang and Alex Kozinski,

Circuit Judges.

HUG, Circuit Judge:

This action concerns an alleged breach of trust by the

State of Hawaii in the manner in which the state officials

defined the shoreline of a parcel of privately owned real

property. The State official’s certification of the high

water mark of the ocean waves along the shoreline of the

parcel resulted in including 1.75 acres within the bound-

ary of the privately owned parcel, rather than as sub-

merged land held by the State in trust for the people of

Hawaii.

I. Overview

The State of Hawaii, under the act that admitted it to

statehood, holds certain lands that were ceded to it by the

United States in trust for particular uses and purposes.

One of those purposes is “for the betterment of the condi-

tions of native Hawaiians.” Mervin Napeahi, in his capac-

ity as a native Hawaiian and a beneficiary of that trust,

brought this action for breach of trust against the Director

of the Department of Land and Natural Resources for the

State of Hawaii in his official capacity. The complaint

sought injunctive and declaratory relief.

Napeahi contends that by abandoning to a private

landowner approximately 1.75 acres of tidal land, which

he claims is ceded trust land, the State of Hawaii has

breached the trust. In contrast, the director, who is

charged with the administration of the trust, maintains

that the disputed area is private property rather than

ceded public land. After a six-day trial, the district judge

found that the area was private land and entered judg-

ment for the director. The principal issue in this appeal is

whether the district judge erred in finding that the direc-

tor was correct in concluding that the area in contention

is private land.

This case varies from the usual Hawaiian shoreline

dispute in that it is not a contest between the State and a

private landowner of sea coast land as to the seaward

boundary. In this case, the State and the landowner agree.

Instead, it is a beneficiary of the ceded land trust who

contends that the State erred in its determination of the

seaward boundary, thus depriving the trust of a parcel of

land that should have remained subject to the terms of

the trust. The landowner is not a party to this action and

has developed the area in question as a part of its hotel

complex. Thus, the injunctive and declaratory remedies

sought by Napeahi would only affect the State in relation

to the beneficiaries of the trust.

II. Historical Background

The boundary dispute that animates this appeal

depends, for its resolution, on events that transpired over

a hundred years ago. Originally, all Hawaiian land was

owned collectively by the people of Hawaii and held in

trust for their benefit by the King. However, in the mid-

nineteenth century, King Kamehameha III, responding to

pressure exerted by foreign residents who sought fee title

to land, undertook a dramatic reformation of the tradi-

tional system of land tenure. A vast land division, the

“Great Mahele,” ensued under which the King retained

certain lands for his own private use, set aside other

lands for the government, and distributed the remaining

tracts to private individuals.

The Hawaii Supreme court has thoroughly detailed

the history and procedures followed in establishing the

title and boundaries of parcels of land after the Great

Mahele. See State By Kobayashi v. Zimring, 566 P.2d 725,

729-31 (Haw. 1977). Briefly, we may summarize this as

follows. An award by the King in the Great Mahele, itself,

did not transfer title. A recipient was required to apply to

the Land Commission to obtain the actual award of the

land. Because the number and size of the tracts of land

distributed pursuant to the Great Mahele were enormous,

“[n]o body of surveyors could have been found in the

country or practically could have been brought [t]here,

who might have surveyed these large estates within the

lifetime of half the grantees.” In re Boundaries of

Pulehunui, 4 Haw. 239, 240 (1879). For this reason, and

because from ancient times every portion of land found

on the Hawaiian Islands had been given a name, these

original transfers from the Land Commission were made

in name only without a description of boundaries. After

conducting a survey to procure a more precise descrip-

tion of the land that the grant encompassed, application

could be made to the Commissioner of Boundaries to

obtain a definitive determination of the scope of the

award. It was only after the boundaries of the land had

been surveyed and defined by the Commissioner of

Boundaries that a Royal Patent could be obtained.

After the overthrow of the Kingdom of Hawaii, these

Royal Patents were recognized but the Republic of

Hawaii assumed title to all lands held by the government

and by the King. These properties, which became public

lands, included all submerged lands surrounding each

island to one marine league seaward (three miles). See

Bishop v. Mahiko, 35 Haw. 608, 642-45 (1940). Subse-

quently, the Republic ceded all public lands (including

submerged land) to the United States pursuant to the

Treaty of Annexation of 1897 and the Joint Resolution of

Annexation of 1898, 30 stat. 750. Thereafter, when Hawaii

became a State in 1959, these “ceded lands” (except for

certain land occupied by the United States Government)

were returned to the State of Hawaii to be held in public

trust for the people under the Hawaii Admission Act of

1959, Public Law 86-3, 73 Stat. 4. Section 5(f) of the Act

provided in pertinent part that

[t]he lands granted to the State of Hawaii

. . . together with the proceeds from the sale of

other disposition of any such lands and the

income therefrom, shall be held by said State as

a public trust for the support of the public

schools and other public educational institu-

tions, for the betterment of the conditions of

native Hawaiians, as defined in the Hawaiian

Homes Commission Act, 1920, as amended, for

the development of farm and home ownership

on as widespread a basis as possible for the

making of public improvements, and for the

provision of lands for public use. Such lands,

proceeds, and income shall be managed and

disposed of for one or more of the foregoing

purposes in such manner as the constitution and

laws of said State may provide, and their use for

any other object shall constitute a breach of trust

for which suit may be brought by the United

States.

One of the land transfers that occurred under the

Great Mahele was an award by King Kamehameha III to

his wife, Queen Kalama, of the ili of Anaehoomalu on the

Island of Hawaii. (An ili is an ancient Hawaiian unit of

land.) Queen Kalama followed the procedure we outlined

above and was ultimately issued both a Certificate of

Boundary and a Royal Patent covering the ili of

Anaehoomalu grant.

Ill. Facts and Procedures

The private property owners involved in this case are

successors in interest under Queen Kalama’s Royal Pat-

ent. The dispute in this case centers around 1.75 acres of

tidal land which Napeahi contends is not part of the

private parcel of land but, instead, is “ceded land” subject

to the terms of public trust under the Hawaii Admission

Act.

In 1976, the Department of Land and Natural

Resources for the State of Hawaii, pursuant to new regu-

lations requiring shorelines to be certified for zoning and

setback purposes, certified the shoreline at Waiulua Bay

(where the tidal lands are located) indicating that the

disputed tidal pond area was situated seaward of the

shoreline. However, in 1984, at the urging of the holders

of the Kalama Patent who wished to develop the area, the

state agency recertified the shoreline concluding that the

disputed tidal pond area fell landward on the coastal

boundary. After successfully moving for recertification,

the holders of the Kalama Patent applied for and received

a dredge and fill permit authorizing development of the

tidal lands. The present action originally was brought in

an attempt to block blasting and dredging of the tidal

pool area, but, after injunctive relief was denied, the

property was graded and developed as planned. It is

currently being used as part of the Hyatt Waikoloa Beach

Resort Hotel.

Originally, the plaintiffs in this action complained of

numerous instances of misconduct in the handling of the

disputed tidal pond area.! However, after their request

for injunctive relief was denied, they dropped several

counts and added a new count, for the first time alleging

that the State’s abandonment of the land to private indi-

viduals constituted a breach of Hawaii’s ceded lands

trusi.2 Subsequent settlement negotiations resulted in an

agreement to proceed to trial in the matter solely on the

breach of trust issue.

After a six-day bench trial, the district judge con-

cluded that the disputed tidal pond area was situated

within the private property boundaries of the ili of

Anaehoomalu. He found that as of July 7, 1898 (the date

the Joint Resolution of Annexation was approved), the

tidal lands at issue were private rather than public prop-

erty and therefore could not have been among the lands

ceded by the Republic of Hawaii to the United States. The

court reasoned that since the disputed tidal pond area is

not ceded land, its use or misuse fails to implicate the

public trust provisions of the Hawaii Admission Act. As a

1 The original complaint alleged the following: (1) failure

to certify compliance with State Water Quality Standards pur-

suant to § 401 of the Clean Water Act; (2) violation of EPA-

Corps Guidelines for issuance of a section 401 dredge and fill

permit; (3) violation of the National Environmental Policy Act;

(4) failure to remove illegal fill; (5) violation of the Rivers and

Harbors Act; and (6) violation of the Hawaii Constitution, art.

xi, § 9.

2 Although the parties have not, in this case, raised the

issue of standing to enforce the provisions of the Trust,

Napeahi, as a native Hawaiian and beneficiary of this public

trust, does have standing to enforce its provisions. See Price v.

Akaka, No. 89-15169, slip. op. at 11822-23 & n.2 (9th Cir. Sep-

tember 25, 1990).

final matter, the district judge held that any natural

change of the seaward boundary since 1898 that would

have made the disputed area submerged land would not

have resulted in its being subject to the terms of the

ceded land trust. This appeal followed.

IV. Interpretation of Royal Patent No. 7523

Possession of a Royal Patent is conclusive evidence of

legally cognizable private title to the Hawaiian iand that

it describes. See Zimring, 566 P.2d at 731. A district court’s

construction of such a document is reviewed de nuvo by

the appellate courts. See United States v. Pappas, 814 F.2d

1342, 1343 & n.2 (9th Cir. 1987); cf. Belcher v. Elliot, 312

F.2d 245, 247 (6th Cir. 1962) (construction of a deed is a

“legal question requiring [the] [c]ourt to interpret the

meaning of the words. . . contained in the deed”). The

underlying factual determinations upon which the con-

struction is based, in contrast, are reviewed for clear

error. See Pappas, 814 F.2d at 1343 n.2.

King Kamahameha awarded the ili of Anaehoomalu

to his wife, Queen Kalama, During the Great Mahele in

1848. Thereafter, in 1854, the Land Commission awarded

her the land in name only. It was not until 1880, over 30

years later, that the land was first surveyed in an attempt

to establish a more precise description of its boundaries.

The task of surveying the Anaehoomalu grant fell to J.S.

Emerson and resulted in the creation of a set of field

notes which contains a metes and bounds description of

all of the property’s boundaries, including the disputed

shoreline boundary. Emerson also prepared a map that

reproduces pictorially his conclusions regarding the ili’s

parameters. Interestingly, the map itself contains two

written descriptions of the parcel’s limits which, while

they specifically refer to the land boundaries in terms of

metes and bounds, do not describe the shoreline bound-

ary so precisely, stating instead that this borderline can be

located “along the seacoast at high water mark.”

In 1881, both the field survey notes and the map

prepared by Emerson were submitted to the Commis-

sioner of Boundaries for the Island of Hawaii so that a

definitive determination of the boundaries of the ili of

Anaehoomalu could be made. After considering the notes

and map provided by Emerson, and correcting one land

boundary in order to resolve a dispute with an adjacent

landholder, the Commissioner issued Certificate of

Boundary No. 131 covering the Anaehoomalu grant. With

the one minor exception mentioned above, this certificate

expressly adopts the metes and bounds descriptions of

the land boundaries that were generated by Emerson’s

survey. Rather than specifically endorsing Emerson’s

metes and bounds description of the shoreline, however,

the Certificate of Boundary refers to the parcel’s seaward

border only in general terms as existing “along the sea-

coast at high water mark.” A Royal Patent covering the ili

of Anaehoomalu was issued later that year by the Minis-

ter of Interior of the Kingdom of Hawaii to Queen

Kalama. It contains a description of the ili’s boundaries

that is identical to the one found in the earlier Certificate

of Boundary.

There was considerable dispute at trial as to whether

the certification of the Commissioner and, in turn, the

Royal Patent, actually incorporated Emerson’s metes and

bounds description of the shoreline or whether the patent

10a

simply left the seaward boundary to be defined as the

high water mark. Although the metes and bounds were

not actually incorporated in the wording of certification

and the Royal Patent, the map and the description filed

with the office are significant evidence that those metes

and bounds delineated the high water mark at that time.

The Hawaii Supreme Court noted in In Re Application

of Ashford, 440 P.2d 76 (Haw. 1968), that “Hawaii's land

laws are unique in that they are based on ancient tradi-

tion, custom, practice and usage. The method of locating

the seaward boundaries was by reputation evidence from

Kamaainas and by the custom and practice of the govern-

ment’s survey office.”? Id. at 77 (citation omitted). The

court noted that it was the practice for the Kamaainas

who knew and lived in the area to go on the land with the

government surveyors and point out the boundaries. The

supreme court held “that according to ancient tradition,

custom and usage, the location of a public and private

boundary dividing private land and public beaches was

long the upper reaches of the waves as represented by the

edge of vegetation or the line of debris.” Id. at 78.

There is ample basis to conclude that-the location of

the seaward boundary, as reflected in government sur-

veyor Emerson’s metes and bounds description, was the

high water mark derived in the traditional Hawaiian

manner and, therefore, the seaward boundary. Thus, we

find no error in the district court’s determination that, at

the time the public land was ceded by the Republic of

3 A Kamaaina is generally defined as “a person familiar

from childhood with any locality.” Ashford, 440 P.2d at 77 n.2.

lla

Hawaii to the United States in 1898, it did not include the

1.75 acres in contention.

V. Change in Shoreline

The determination of the shoreline boundary as it

existed in 1898 does not, however, end the inquiry. We

must determine whether the State has acquired additional

submerged land since 1898, and if so, whether it became

part of the ceded land and, thus, subject to the terms of

the public trust provisions of the Hawaii Admission Act.

The Hawaii Supreme Court has held that the seaward

boundary of ocean front property can change through

erosion, resulting in the State acquiring title to the newly

eroded submerged lands. County of Hawaii v. Sotomura,

517 P.2d 57, 61 (1973), cert. denied, 419 U.S. 872 (1974). The

court stated that “the precise location of the high water

mark on the ground is subject to change and may always

be altered by erosion.” Id. The court held that, when the

seaward boundary changes inland by erosion, the State

owns and may obtain title to the additional submerged

land that results. Id.

The Royal Patent to the parcel of property here in

question described the seaward boundary as located

“along the seacoast at high water mark.” Under the hold-

ing of Sotomura, that boundary can change through ero-

sion and result in an addition to the submerged public

land. There was conflicting evidence at trial as to whether

this had occurred.

A secondary question exists, however. Even assum-

ing that the seaward boundary has changed since 1898,

12a

resulting in additional state owned submerged land, does

this constitute “ceded” land subject to the trust? The

director argues that land which became submerged since

1898 could not be “ceded” land because it was not then

part of the public land ceded to the United States, and

only this “ceded” land was returned to Hawaii to be held

in trust.

The Hawaii Supreme Court dealt with a similar prob-

lem in Zimring. In that case, the issue was over the title to

land that had been newly created on the seashore as a

result of a lava flow. The court, after carefully reviewing

the history of Hawaiian land law, concluded that this was

ceded land subject to the terms of the public trust. 566

P.2d at 739. The district court in the case before us con-

cluded that the Zimring case was inapplicable to this case

because it involved land created by a lava flow, not

submerged land created by erosion. However, the reason-

ing of the Hawaii Supreme Court in Zimring is equally

applicable here. The supreme court noted that according

to the terms of the Joint Resolution of Annexation, the

Republic of Hawaii ceded to the United States

The absolute fee and ownership of all public,

Government, or Crown lands, public buildings

or edifices, ports, harbors, military equipment,

and all other public property of every kind and

description belonging to the Government of the

Hawatian Islands, together with every right and

appurtenance thereunto appertaining.

Id. at 735-36 (emphasis in original). The supreme court

held that the property ceded included both choate and

inchoate property, nothing that Article 15 of the Repub-

lic’s constitution described the territory of the Republic

as including territory that “may hereafter be added to the

——<_—

13a

Republic.” Id. at 736. The court went on to hold that the

Republic voluntarily chose to cede all its property inter-

ests and this included the right to future lava extensions.

The court stated:

Since the right to future lava extensions was

conveyed to the United States at the time of

annexation, any lava extension thereafter cre-

ated should be considered to be among the

“lands and properties that were ceded to the

United States by the Republic of Hawaii under

the joint resolution of annexation.” [Admission

Act § 5(g)]. Such land passed to the State of

Hawaii pursuant to section 5(b) of the Admis-

sion Act. The State thus obtained title to the

disputed lava extension upon admission in 1959.

Id.

There is no reason to distinguish the inchoate prop-

erty interest in submerged land that could be acquired by

a lava extension. Both were inchoate property interests

which Zimring held to be property that was ceded to the

United States and then returned to the State in 1959.

Thus, the holdings in Sotomura and Zimring require us to

conclude that if the 1.75 acres became submerged land

because of natural erosion after 1898 and before being

altered by the actions of the property owner, then the

property would be ceded lands subject to the terms of the

trust.

There was conflicting evidence presented at trial as

to whether the 1.75 acres that was included within the

privately owned parcel in 1898 later became submerged

land through a natural erosion of the seashore. The dis-

trict judge did not make a factual finding on this issue

because he concluded that if the property in question was

14a

within the private property boundary in 1898, then it

could not become property subject to the terms of the

trust thereafter. This conclusion does not accord with the

Hawaii Supreme Court’s rulings in Sotomura and Zimring.

Thus, we must remand the case to the district court for a

finding on whether the acreage in question naturally

became submerged land by erosion within the meaning of

Ashford, Sotomura, and Zimring after 1898 and before the

physical alternation of the area by the property owners. If

it did, then it would have become land subject to the

terms of the trust and the land would have been improp-

erly abandoned in violation of the terms of the trust. If

not, then it remained private land and there was no

breach of trust.

The case is remanded to the district court for the

required findings and, based upon those findings, an

appropriate judgment on the declaratory and injunctive

relief sought by Napeahi.

AFFIRMED in part, and REMANDED.

15a

APPENDIX “B”

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

MERVIN NAPEAHI, SIERRA

CLUB, and HAWAII

AUDUBON SOCIETY,

CIVIL NO.

85-1523

Plaintiffs.

JOHN O. MARSH, in his

capacity as the secretary

of the Army, et al.

Defendants.

)

vs. )

)

ORDER GRANTING IN PART AND DENYING

IN PART DEFENDANTS’ MOTION TO

DISMISS AND PLAINTIFFS’ MOTION

TO AMEND THE FIRST AMENDED COMPLAINT

(Filed June 20, 1986)

At a hearing on Tuesday May 27, 1986, the following

motions were heard by this court:

Plaintiffs’ Motion filed April 29, 1986 to Amend the

First Amended Complaint;

Defendant Transcontinental Development’s & Defen-

dant Atpac’s Motion filed March 21, 1986 to Dismiss

Count I and II and Motion for Summary Judgment on all

counts except Count IV;

Defendants Transcontinental Development and Atpac

Land Co. and Matsubara and Ono’s Joint Motion filed

March 12, 1986 to Dismiss Count IV of the First Amended

Complaint and for Sanctions;

16a

Federal Defendants’ Motion filed on March 25, 1986

to Dismiss &/or for Summary Judgment on all Counts;

Defendants Matsubara and Ono’s Motion filed March

20, 1986 to Dismiss the First Amended Complaint.

The following counsel appeared for the parties at this

hearing: Alan T. Murakami & Livia Wang for plaintiff

Mervin Napeahi; Lisa Woods Munger for defendant

Transcontinental Development Co. and Atpac Land Co.;

Flo Nakakuni for the defendant John O. Marsh, Col.

Michael M. Jenks, Lee Thomas and Judith Ayers; Chelun

Huang & Edward P. Watson, for defendant Susumu Ono

as Chairperson of the Hawaii Dept. of Land and Natural

Resources.

The court having considered the memoranda of law

in support of the above listed motions and in opposition

thereto, the arguments of counsel, as well as the records

and files of this case, finds as follows:

Plaintiff Mervin Napeahi is allegedly a native Hawai-

ian and a beneficiary of the ceded land trust established

by Section 5(f) of the Admission Act. Napeahi, the Sierra

Club, and the Hawaii Audubon Society, filed this suit on

December 20, 1985. .

The parties have agreed to dismiss all counts except

the fourth claim. The stipulation was filed on May 19,

1986.

Napeahi alleges that he has been injured by the aban-

donment of ceded land caused by the alteration of the

certified shoreline by the Department of Land and Nat-

ural Resources as well as by the uncompensated loss of

the submerged land beneath the fill placed in Wailulua

ee ee _

17a

Bay and further commercial use of the area by the private

defendants without payment to the State.

F.R.C.P. Rule 15(a) provides that “a party may amend

his pleading only by leave of court or by written consent

of the adverse party; and leave shall be freely given when

justice so requires.” The Ninth Circuit has consistently

held that “Rule 15’s policy of favoring amendments to

pleadings should be applied with extreme liberality.”

United States v. Webb, 655 F.2d 977 (9th Cir. 1981).

The Supreme Court has interpreted the phrase “when

justice so requires,” declaring that leave to amend should

be “freely given” in the absence of “undue delay, bad

faith or dilatory motive on the part of the movant.”

Foman v. Davis, 371 U.S. 178, 182 (1972). The granting or

denial of such leave lies within the discretion of the

District Court.

The Ninth Circuit has stated that “[s]leveral factors

govern the propriety of a motion under Rule 15: (1)

undue delay, (2) bad faith, (3) futility of amendment, and

(4) prejudice to the opponent. Loehr v. Ventura County

Community College District, 743 F.2d 1310, 1319 (9th Cir.

1984).

Delay alone is an insufficient ground for denying

leave to amend. Howey v. United States, 481 F.2d 1187,

1191 (9th Cir. 1973). The party opposing the motion to

amend must show futility of amendment, bad faith or

prejudice in order to prevail.

18a

While the plaintiffs filed this motion to amend six

months after filing their original complaint, delay alone is

not sufficient grounds for denying leave to amend. In

Howey v. United States, 481 F.2d 1187 (9th Cir. 1973) the

Ninth Circuit held that leave to amend should not be

denied even if five years had gone by since the original

pleadings, where neither bad faith nor prejudice was

apparent.

The defendants have not presented any evidence

showing that the plaintiffs’ failure to amend earlier was

due to bad faith. Similarly, although defendant Mat-

subara has argued that he would be prejudiced by the

amendment, he has not brought forward any evidence of

the specific nature of the claimed prejudice. Finally,

amending the complaint to include a claim under 42

U.S.C. § 1983 would not be futile.

Applying the law in the Ninth Circuit articulated in

Loehr and in Howey, the court hereby GRANTS IN PART

the plaintiffs’ Motion to Amend their Complaint as to

Count IV so that the plaintiff may file a Second Amended

Complaint which alleges a cause of action under 42

U.S.C. § 1983 against defendant Ono. —

Because the acts plaintiffs complain of in Count IV do

not involve defendant Matsubara, it would be futile to

allow the amendment to the complaint to include the

proposed paragraph 3 in the prayer for relief. Therefore,

as to that paragraph, and in all other respects aside from

the amendment of Count IV, the motion is DENIED IN

PART.

The plaintiffs are ordered to file a Second Amended

Complaint in a form consistent with this order.

19a

II.

The Motion to Dismiss filed on March 21, 1986 by

Defendant Transcontinental Development and Atpac is

now moot because it did not address Count IV, the only

count remaining after the stipulation filed on May 16,

1986.

Ill

The Motion to Dismiss Count IV filed by defendants

Transcontinental Development Co., Atpac Land Co., Mat-

subara and Ono on March 12, 1986, will be considered

next.

In considering a motion to dismiss under F.R.C.P. Rule

12(b)(6), the general rule is that a complaint should not be

dismissed on the pleadings “unless it appears beyond

doubt that the plaintiff can prove no set of facts in sup-

port of his claim which would entitle him to relief.”

Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Gillespie v.

Civiletti, 629 F.2d 637 (9th Cir. 1980); California ex. rel.

Yonger v. Mead, 618 F.2d 618, 620 (9th Cir. 1980).

In evaluating the plaintiffs’ second amended com-

plaint, any doubts should be construed in favor of the

plaintiffs. Ernest W. Hahn, Inc. v. Codding, 615 F.2d 830,

834-36 (9th Cir. 1980). The complaint must be liberally

construed, giving the plaintiffs the benefit of all proper

inferences. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

The Ninth Circuit has held that the enforcement of

section 5(f) of the Admission Act presents a federal ques-

tion subject to the original jurisdiction of this court under

20a

28 U.S.C. § 1331. Price v. State of Hawati, 764 F.2d 623, 629

(9th Cir. 1985).

After the stipulation filed on May 19, 1986, the only

Count remaining in this action is Count IV. Even liberally

construing the complaint, the court finds that the second

amended complaint does not state a cause of action

against the defendant developers, Transcontinental and

Atpac. Therefore, the complaint will be DISMISSED

WITH PREJUDICE as to those two defendants.

The Motion for Sanctions filed by defendants Trans-

continental Development Co., Atpac Land Co., Matsubara

and Ono on March 12, 1986 will now be considered.

Although the plaintiffs would have been better

advised to have included 42 U.S.C. § 1983 in their original

claim for enforcement of section 5(f) of the Admission

Act, the court does not view their failure to do so as

grounds for sanctions. The motion for sanctions is

DENIED.

The court now turns to the Federal Defendants’

Motion to Dismiss and/or for Summary Judgment filed

on March 25, 1986.

After the stipulation filed on May 19, 1986, the only

Count remaining on this action is Count IV. Even liberally

construing the complaint, the court finds that the second

amended complaint does not state a cause of action

against the federal defendants, John O. Marsh, Col. Mic-

hael M. Jenks, Lee Thomas, and Judith Ayres. Therefore,

21a

the complaint will be DISMISSED WITH PREJUDICE as

to those four defendants.

Defendant Matsubara’s and Ono’s March 20, 1986

Motion to Dismiss Count IV of the First Amended Com-

plaint.

Because Count IV is the only remaining count in the

complaint, and because that Count does not involve

defendant Matsubara, it is hereby ordered that the com-

plaint be DISMISSED WITH PREJUDICE as to defendant

Matsubara.

The complaint does raise a federal question under

Section 5(f) of the Hawaii Admission Act, a federal stat-

ute. In the 1984 Keaukaha II, the Ninth Circuit held that a

violation of § 5(f) is a violation of federal law. Keaukaha-

Panawea Community Association v. Department of Hawaii

Home Lands, 739 F.2d 1469, 1472 (9th Cir. 1984).

In the latest case directly on point the Ninth Circuit

held that a group of native Hawaiians had a private right

of action under 42 U.S.C. § 1983 to enforce the provisions

of section 5 of the Admission Act. Keaukaha II at 1472.

In its opinion in Price v. State of Hawati, 764 F.2d 623

(9th Cir. 1985), the Ninth Circuit did not address the

question of whether the plaintiffs had a private right of

action under 42 U.S.C. § 1983. Therefore, Keaukaha II

remains the current Ninth Circuit authority on point.

The recent Ninth Circuit decision, Martori Bros. v.

James-Massengale, et al., 84-6137, 84-6274, 84-6275 (April 1,

22a

1986) is dispositive of defendant Ono’s abstention argu-

ment. After noting that “abstention from the exercise of

federal jurisdiction is the exception, not the rule” (quot-

ing Hawaii Housing Authority v. Midkiff, 104 S.Ct. 2321,

2327-28 (1984)) the court in Martori Bros. held that a

federal court should abstain under the doctrine of Youn-

ger v. Harris, 401 U.S. 37 (1971) only if one of three vital

state interests is present: a state criminal proceeding, or a

proceeding closely related to a criminal proceeding, or a

proceeding involving the fundamental operation of the

state court system. Martori Bros., (slip op. at 12-13.)

Because the case at bar does not involve any of the

vital state interests recognized by the Ninth Circuit in

Martori Brothers, this court will not exercise its right of

abstention.

The State does not have sovereign immunity under

the eleventh amendment since, according to the court’s

reading of the complaint and the representations made in

court by plaintiffs’ counsel, the complaint seeks only

declaratory and injunctive relief.

Therefore, defendant Ono’s motion to dismiss should

be and hereby is DENIED.

DATED: Honolulu, Hawaii, JUN 20 1986

/s/ Harold M. Fong

UNITED STATES DISTRICT

JUDGE

23a

APPENDIX “C”

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

MERVIN NAPEAHI,

individually and on behalf of

all those similarly situated,

Plaintiff,

CIVIL NO.

85-1523

)

vs. )

SUSUMU ONO, in his ‘

capacity as Director of the

Department of Land and

)

Natural Resources, State

of Hawaii,

Defendant.

DECISION AND ORDER

(Filed Oct. 20, 1986)

The above-titled matter came in for non-jury trial

before this Court on September 5, 1986. Alan Murakami

and Livia Wang appeared on behalf of plaintiff. Edwin

Watson and Chelun Huang appeared on behalf of defen-

dant. The Court, having considered the stipulated facts

and the exhibits, having heard the testimony of the wit-

nesses, and being fully advised as to the premises herein,

finds as follows:

FINDINGS OF FACT

1. In 1848, Kamehameha III awarded the Ili of

Anaehoomalu, situated at Kohala on the Island of

Hawaii, to H. Kalama under the Great Mahele.

24a

2. On May 20, 1854, the Land Commission awarded

Land Commission Award 4452, Apana 4, to H. Kalama.

The Ili of Anaehoomalu was awarded in name only with

no specific metes and bounds description of the parcel.

3. In October 1880, J.S. Emerson first surveyed and

established by metes and bounds description the bound-

ary of the Ili of Anauhoomalu.

4. Field Book Reg. No. 312, filed in the Survey Divi-

sion of the Department of Accounting and General Ser-

vices of the State of Hawaii, contains the original metes

and bounds survey description and field survey notes of

Emerson’s 1880 survey of the boundaries of the Ili of

Anaehoomalu.

5. In his 1880 survey, Emerson located and plotted

fourteen survey points along the shoreline boundary of

the Ili of Anaehoomalu.

6. In December 1880, Emerson prepared a map

delineating the boundaries of the Ili of Anaehoomalu.

The map is entitled “Lahuipuaa and Anaehoomalu.” The

original map of Lahuipuaa and Anaehoomalu, prepared

by Emerson in December 1880, is also identified as Gov-

ernment Registered Map 824. Government Registered

Map 824 is on file in the Survey Division of the Depart-

ment of Accounting and General Services of the State of

Hawaii.

7. The depiction of the shoreline boundary of Ili of

Anaehoomalu on Government Registered Map 824, pre-

pared by Emerson in 1880, conforms with and correctly

plots the metes and bounds description of Emerson’s

field survey notes contained in Field Book No. 312.

25a

8. In 1881, the metes and bounds survey description

of the Ili of Anaehoomalu and the map delineating the

boundaries of the Ili of Anaehoomalu, both prepared by

Emerson in 1880, were submitted to the Boundary Com-

missioner for the Island of Hawaii for a determination of

the boundaries of the Ili-of Anaehoomalu. A portion of

the common boundary between the Ili of Anaehoomalu

and the Ili of Waikoloa was corrected, and the total area

of the Ili of Anaehoomalu was corrected from approx-

imately 879 acres to approximately 866 acres.

9. On January 24, 1881, FS. Lyman, the Boundary

Commissioner for the Island of Hawaii, issued Certificate

of Boundary No. 131. Certificate of Boundary No. 131

covered the Land of Anaehoomalu, District of Kohala,

Island of Hawaii. The Certificate of Boundary was based

upon Emerson’s 1880 survey of the Ili of Anaehoomalu,

as corrected by the Boundary Commission.

10. On February 2, 1881, Royal Patent No. 7523,

Apana 4, was issued to H. Kalama. Royal Patent No. 7523

adopted the description of the Ili of Anaehoomalu pro-

vided in Certificate of Boundary No. 131.

11. Royal Patent No. 7523 situated the disputed

tidal pools withir. the private property boundaries of the

Ili of Anaehoomalu.

12. On July 7, 1898, the tidal pools were part of the

private property comprising the Ili of Anaehoomalu.

26a

CONCLUSIONS OF LAW

1. On May 20, 1854, Land Commission Award 4452,

Apana 4, conveyed title to the Ili of Anaehoomalu to H.

Kalama.

2. Section 5(f) of the Admission Act creates a ceded

land trust.

3. Section 5(f) of the Admission Act defines “ceded

lands” to include “[t]he lands granted to the State of

Hawaii by subsection (b) of this section and public lands

retained by the United States under subsections (c) and

(d) and later conveyed to the State under subsection (e),

together with the proceeds from the sale or other disposi-

tion of any such lands and the income therefrom... . ”

4. Section 5(b) lands include “all the public lands

and other public property . . . within the boundaries of

the State of Hawaii, title to which is held by the United

States immediately prior to its admission into the Union.”

5. Section 5(g) of the Admission Act defines “public

lands and other public property” as “the lands and prop-

erties that were ceded to the United States by the Repub-

lic of Hawaii under the joint resolution of annexation

approved July 7, 1898 (30 Stat. 750), or that have been

acquired in exchange for lands or properties so ceded.”

6. Thus, the ceded lands of section 5(b) of the

Admission Act are defined as the lands and properties

ceded to the United States by the Republic of Hawaii on

July 7, 1898.

a te Ne

Aa te wn big ae 6 ties anne? Cll

27a

7. In Mist v. Kawelo, the Hawaii Supreme Court held

that a royal patent is a quit claim of the government’s

interest in lands. 11 Haw. 587, 589 (1898).

8. By issuing Royal Patent 7523 to H. Kalama on

February 2, 1881, the government relinquished any legal

interest in the disputed tidal pools.

9. On July 7, 1898, the disputed tidal pools were

private property and not part of the section 5(b) lands

that were ceded to the United States by the Republic of

Hawaii.

10. In 1968, the Hawaii Supreme Court determined

that the beachfront title line is along the “upper reaches

of the wash of waves, usually evidenced by the edge of

the vegetation or by the line of debris left by the wave of

waves.” In re Ashford. 50 Haw. 314, 315 (1968).

11. Using the Ashford test, the Court later found that

the seaward boundary could be altered as a result of

erosion. County of Hawaii v. Sotomura, 55 Haw. 176 (1973).

12. The Ashford decision has no retroactive effect,

because “[p]roperty rights are determined by the law in

existence at the time such rights are vested.” Ashford, 50

Haw. at 317.

13. Even assuming, arguendo, that the Ashford deci-

sion can be applied retroactively, plaintiff has failed to

meet his burden to prove that by on or before July 7,

1898, the disputed tidal pools lay below the upper

reaches of the wash of the waves.

14. Therefore, notwithstanding Ashford, the dis-

puted tidal pools were private property and were not

28a

part of the lands and properties that were ceded to the

United States in 1898.

15. In State v. Zimring, 58 Haw. 106, 123 (1977), the

Hawaii Supreme Court expanded the definition of ceded

lands to include lava extensions that were not in exis-

tence in 1898. In Zimring, a volcanic eruption in 1955

overflowed the shoreline and extended it, creating

approximately 7.9 acres of new land. The State of Hawaii

sought to quiet title in itself in the new land. The Hawaii

Supreme Court held that the lava extensions were both

public and ceded lands. The Court held that “the Repub-

lic [of Hawaii] chose to cede and voluntarily quitclaim all

of its property interests including its right to, and interest

in, any future lava extensions.” Id. at 123.

16. Zimring is inapposite to the case at bar. In

Zimring, the Hawaii Supreme Court addressed the issue

of whether or not lava extensions created subsequent to

1898 constituted ceded lands. The Court held affirma-

tively. The instant case does not concern an inchoate

property right such as a future lava extension.

17. Assuming, without deciding, that the disputed

tidal pools became public lands in 1968 or subsequently

as a result of the Ashford decision, the lands did not

become ceded lands.

18. The disputed tidal pools were not ceded to the

United States in 1898 and subsequently did not become

ceded lands. Thus finding, the Court need not decide the

issue of whether or not the disputed tidal pools are public

lands as a result of the Ashford decision.

29a

19. In light of the Court’s finding that the disputed

tidal pools are not ceded lands, Susumu Ono did not

breach any fiduciary duty he might have had in his

official capacity under Section 5(f) of the Admission Act.

20. Judgment is entered in favor of defendant and

against plaintiff.

IT IS SO ORDERED.

DATED: Honolulu, Hawaii, OCT 20 1986

/s/ Harold M. Fong

UNITED STATES DISTRICT

JUDGE

30a

UNITED STATES DISTRICT COURT

DISTRICT OF HAWAII

MERVIN NAPEAHI, individually JUDGMENT

and on behalf of all those similarly IN A

situated, CIVIL CASE

SUSUMU ONO, in his capacity as

director of the Department of Land

and Natural Resources, State of

Hawaii

CASE NUMBER:

85-1523

[ ] Jury Verdict. This action came before the Court for a

trial by jury. The issues have been tried and the jury

has rendered its verdict.

[x] Decision by Court. This action came to trial before

the Court. The issues have been tried and a decision

has been rendered.

IT IS ORDERED AND ADJUDGED

that judgment is entered in favor of defendant and

agianst plaintiff.

FILED IN THE

UNITED STATES DISTRICT COURT

DISTRICT OF HAWAII

OCT 20 1986

at 3 o’clock and min. PM.

WALTER A. Y. H. CHINN, CLERK

cc: all parties of record

Oct. 20, 1986 /s/ Walter A. Y. H. Chinn

Date Clerk

3la

APPENDIX “D”

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

MERVIN NAPEAHI,

individually and on behalf

of all those similarly

situated,

CIVIL NO.

85-1523

)

Plaintiff, 3

vs. )

SUSUMU ONO, in his

capacity as Director of )

the Department of Land and )

)

Natural Resources, State of

Hawaii,

Defendant,

ORDER DENYING PLAINTIFF’S MOTION TO AMEND

JUDGMENT, DECISION AND ORDER, FINDINGS OF

FACT AND CONCLUSIONS OF LAW

(Filed Feb. 3, 1987)

The above-titled matter came on for non-jury trial

before this court on September 5, 1986. On October 20,

1986, this court entered its decision and order in this case.

Plaintiff now moves pursuant to Fed. R. Civ. P. 59(e) and

60(b) to have this court amend the judgment, decision

and order, findings of fact and conclusions of law.

Plaintiff makes several arguments in favor of this

motion to amend the court’s decision. The court will

address each argument in turn. First, plaintiff argues that

Royal Patent 7523 does not situate the tidal pools within

the private property boundaries of the Ili of

32a

Anaehoomalu. Plaintiff argues that the court cannot rely

on a private survey map to determine the seaward

boundary of the ili. The court disagrees and herein articu-

lates its decision in this case to clear up any confusion

that might exist.

In the 1840’s, King Kamehameha III reformed the

traditional system of land tenure and instituted a regime

of private title. State v. Zimring, 58 Haw. 106, 111 (1977).

In 1846, the Board of Commissioners to Quiet Land

Title, known as the Land Commission, was created for the

“investigation and final ascertainment or rejection of all

claims of private individuals.” Id. The Land Commission

also was empowered to make Land Commission Awards.

Id. Upon presentation of commutation by the awardee to

the government, the Minister of Interior was authorized

to issue Royal Patents upon such awards. Id.

In 1848, as part of the Great Mahele or “division”,

Kamehameha III awarded the Ili of Anaehoomalu, situ-

ated at Kohala on the Island of Hawaii, to H. Kalama. The

land was awarded in name only; such a grant of property

was intended to assign “whatever was included in such

tract according to its boundaries as known and used from

ancient times.” In the Matter of the Boundaries of Pulehunui,

4 Haw. 239, 240 (1879). “The Mahele agreements were

essentially reciprocal quitclaims and did not convey title.

Detailed claims had to be presented to the Land Commis-

sion for formal Land Commission Awards.” Id. at 112.

On May 20, 1854, the Land Commission awarded

Land Commission Award 4452, Apana 4, to H. Kalama.

Through this award, the Land Commission awarded to H.

ee oe ome ot

ee Seer eee

ao RN At te Mee ee

> |

;

33a

Kalama the Ili of Anaehoomalu in name only with no

specific metes and bounds description of the parcel.

Before a Royal Patent could be issued on this land,

however, the boundaries had to be ascertained and a

boundary certificate issued. Territory of Hawaii v. Lil-

iuokalani, 14 Haw. 88, 94 (1902). Therefore, in October

1880, J.S. Emerson surveyed and established by metes

and bounds description the boundary of the Ili of

Anaehoomalu. Field Book Reg. No. 312 contains the origi-

nal metes and bounds survey description and field sur-

vey notes of this survey. In his survey, Emerson located

and plotted fourteen (14) survey points along the shore-

line boundary of the Ili of Anaehoomalu.

In December 1880, Emerson prepared a map delineat-

ing the boundaries of the Ili of Anaehoomalu. The map,

identified as Government Registered Map 824, is on file

in the Survey Division of the Department of Accounting

and General Services of the State of Hawaii. The depic-

tion of the shoreline boundary of the Ili of Anaehoomalt:

on Government Registered Map 824 conforms with and

correctly plots the metes and bounds description of Emer-

son’s field survey notes contained in Field Book No. 312.

In 1881, the metes and bounds survey description of

the Ili of Anaehoomalu and the map delineating the

boundaries of the Ili of Anaehoomalu, both prepared by

Emerson in 1880, were submitted to the Boundary Com-

missioner for the Island of Hawaii for a determination of

the boundaries of the Ili of Anaehoomalu. A portion of

the common boundary between the Ili of Anaehoomalu

and the Ili of Waikoloa was corrected, and the total area

34a

of the Ili of Anaehoomalu was corrected from approx-

imately 879 acres to approximately 866 acres.

On January 24, 1881, F.S. Lyman, the Boundary Com-

missioner for the Island of Hawaii, issued Certificate of

Boundary No. 131. Certificate of Boundary No. 131 cov-

ered the Land of Anaehoomalu, District of Kohala, Island

of Hawaii.

On February 2, 1881, Royal Patent No. 7523, Apana 4,

was issued to H. Kalama.

The cou:t found that Royal Patent No. 7523 adopted

the description of the Ili of Anaehoomalu provided in

Certificate of Boundary No. 131. The court further found

that Certificate of Boundary No. 131 was based upon

Emerson’s 1880 survey of the Ili of Anaehoomalu, as

corrected by the Boundary Commissioner. Based upon

these findings, the court held that Royal Patent No. 7523

situated the disputed tidal pools within the private prop-

erty boundaries of the Ili of Anaehoomalu.

Plaintiff takes issue with these findings and argues

that a survey is the mere opinion of a surveyor and

cannot be regarded as evidence of the shoreline absent

proof that it is based on kamaaina testimony of the

ancient boundary. In support of this argument, plaintiff

cites In the Matter of the Boundaries of Pulehunui, 4 Haw.

237 (1879). This case, decided by the Hawaii Supreme

Court in 1879, concerns a boundary dispute between the

owners of two adjoining parcels of land. The owner of the

ahupuaa of Pulehunui submitted an application to the

Boundary Commission. Based upon the description notes

and map of a certain survey made on behalf of the

petitioner, the Boundary Commissioner agreed to issue a

35a

boundary certificate. The owners of an adjacent parcel of

land appealed the Boundary Commissioner’s decision.

The Hawaii Supreme Court affirmed the Boundary Com-

missioner on the basis that the metes and bounds survey

conformed to the ancient boundaries of the parcel. The

Hawaii Supreme Court stated that:

[A survey is] [nlothing but the opinion of the

surveryor, on whatever grounds he may have

derived it, that such and such were the bound-

aries of the land. .. . [I]t is apparent that no

survey, even one founded on good information,

can be anything more than secondary evidence

when it has been proved to have been so

founded, and can be no evidence in itself with-

out proof that it is the expression of original

kamaaina direction.

Id. at 251.

The Hawaii Supreme Court then evaluated the testi-

mony of a number of kamaaina witnesses who had per-

sonal knowledge of the area and the ancient boundaries.

Based upon this testimony, the Hawaii Supreme Court

was Satisfied that the survey conformed to the ancient

boundaries.

As in Pulehunui, H. Kalama applied for a boundary

certificate and retained Emerson to conduct a survey in

connection with this application. At the time of the peti-

tion for the boundary certificate, an appeal could have

been made if any party felt that the metes and bounds

survey did not conform to the ancient boundaries. Such

an appeal would have given kamaainas an opportunity to

testify as to their understanding of the ancient bound-

aries of the Ili of Anaehoomalu. In fact, it appears that

such an appeal was made since the boundaries were

36a

“corrected” before the boundary certificate was issued.

Based upon the revised boundary delineation, the Bound-

ary Commissioner issued a boundary certificate.

Although the court agrees that a survey is merely second-

ary evidence, the Boundary Commissioner’s issuance of

the boundary certificate satisfies this court that the sur-

vey, as corrected, conforms to the ancient boundaries, as

required by the Hawaii Supreme Court in Pulehunui. Fur-

thermore, the court finds that the Royal Patent No. 7523,

issued upon grant of the boundary certificate, adopted

the description of the Ili of Anaehoomalu provided in

Certificate of Boundary No. 131. Therefore, the court

again finds that the disputed tidal pools lie within the

private property boundaries of the Ili of Anaehoomalu.

Second, plaintiff argues that the Ashford definition of

the shoreline is merely a reaffirmation of the traditional

definition of shorelines, and did not create new state

property rights in 1968. Plaintiff then argues that if the

tidal pools lay before the highest wash of the waves in

1898, the tidal pools were public land under the Ashferd

definition and thus were ceded to the United States.

Plaintiff argues that all land in Hawaii is presumed to be

public land unless proven otherwise. Plaintiff argues that

since Royal Patent No. 7523 does not specifically include

the disputed tidal pools, this area remained in the public

domain. Plaintiff further argues that defendant had the

burden to show that the Emerson survey delineated the

shoreline in accordance to the Ashford standard, i.e. the

highest wash of the waves. Plaintiff argues that no such

showing was made. Therefore, the disputed tidal ponds

remained in the public domain.

BD Late ee PO MEIN ltt aS tig eA BR:

eh Se actA oy

wren ee

37a

Assuming, without deciding, that the holding in Ash-

ford can be applied retroactively, the court would agree

that the tidal pools are ceded lands if they did lay below

the highes: wash of the waves in 1898. The court also

agrees that:

land in its original state is public land and if not

awarded or granted, such land remains in the

public domain. To establish legally cognizable

private title to land in the great majority of

cases, One must show that he or a predecessor-

in-interest acquired a Land Commission Award,

a Royal Patent, a Kamehameha Deed, a Grant, a

Royal Patent Grant, or other government grant

for the land in question.

State v. Zimring, 56 Haw. at 114.

In the instant case, however, defendant demonstrated

by a preponderance of the evidence that tidal pools were

part of the property conveyed to H. Kalama and her

descendants through Royal Patent No. 7523. The fact that

the Royal Patent does not specifically refer to the tidal

pools does not persuade this court that they were not

included as part of the transfer. See In re Cecelia Keo-

hokalani Kamakana, 58 Haw. 632, 637 (1978). Since the

court found that defendant met his burden to demon-

strate that the tidal pools were within the private prop-

erty boundaries of the Ili of Anaehoomalu, defendant

overcame the presumption that the tidal pools were pub-

lic lands.

If, as plaintiffs argue, Ashford applies in this case, the

court agrees that the tidal pools would be ceded lands if

they did lay below the highest wash of the waves in 1898.

However, since defendant overcame the presumption that

the tidal pools were private ‘property, plaintiff has the

38a

burden to demonstrate that the pools fell back within the

public domain by virtue of their position below the high-

est wash of the waves in 1898. The court is not persuaded

that plaintiff proved this by a preponderance of the evi-

dence. Mervin Napeahi, a kamaaina who lives in the area,

testified as to his knowledge of the area. Napeahi’s testi-

mony, however, dates back only to 1945 and provides the

court with no evidence as to the position of the tidal

pools in 1898. Richard Moore, a geologist, did testify that

there has been little change in the topography of the area

over the last 100 years. However, the court was not

persuaded by Moore’s testimony, because he did not pro-

vide the court with the data upon which he based his

opinion. The court finds that Moore’s testimony, without

the underlying data upon which he relied, is insufficient

to establish the position of the tidal pools in 1898.

Accordingly, the court finds that plaintiff did not meet his

burden to establish that the tidal pools lay below the

highest wash of the waves in 1898.

Therefore, the court reaffirms its finding that the

disputed tidal pools are not ceded lands. Since the tidal

pools are not ceded lands, defendant Susumu Ono did

not breach any fiduciary duty he may have had in his

official capacity as the director of the Department of Land

and Natural Resources of the State of Hawaii.

Accordingly, for the reasons stated above, IT IS

HEREBY ORDERED that plaintiff’s Motion to Amend

ee ee a

39a

Judgment. Decision and Order, Findings of Fact and Con-

clusions of Law is DENIED.

DATED: Honolulu, Hawaii, FEB 3 1987 |

/s/ Hareld M. Fong

UNITED STATES DISTRICT

JUDGE

40a

APPENDIX “E”

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

)

Nut Loa Price, Dr., aka Maui Loa, )

individually and in capacity as_) .

chief of Hou Hawaiians; THe Hou ) > ae

Hawallans, a native Hawaiian D.C. No.

Ohana; KAMuELA Price, CV-88-0773 DAE

individually and in his capacity OPINION

as member of elder council

of the Hou Hawaiians,

Plaintiffs-Appellants,

MOANIKEALA AKAKA; Rop BurcEss;

CLARENCE CHING; FRENCHY Desoto;

Louis Hao et al.,

)

Defendants-Appellees. )

)

Appeal from the United States District Court

for the District of Hawaii

David A. Ezra, District Judge, Presiding

Argued and Submitted

May 16, 1990 - San Francisco, California

Filed September 25, 1990

Before: Mary M. Schroeder and William C. Canby, Jr,

Circuit Judges, and Judith N. Keep,” District Judge.

*The Honorable Judith N. Keep, United States District Judge

for the Southern District of California, sitting by designation.

Se Se mc al

4la

CANBY, Circuit Judge:

Nui Loa Price, Kamuela Price and the Hou Hawaiians

(hereinafter “Price”), all native Hawaiians, appeal from

the district court’s dismissal of their action, brought

under 42 U.S.C. § 1983, for damages against the trustees

of the Office of Hawaiian Affairs. Price alleges that the

defendants contravened federal law restricting the man-

agernent of Hawaiian lands previously held by the United

States. The district court dismissed the action for failure

to state a claim and for lack of subject matter jurisdiction.

We reverse and remand the case to the district court.

FACTS

When Hawaii achieved statehood, the United States

ceded to the new State almost all of the Hawaiian lands to

which the federal government held title. See Hawaii

Admission Act, Pub.L. No. 86-3 (hereinafter the “Admis-

sion Act”) § 5(b), 73 Stat. 5 (1959), as amended by the

Hawaiian Omnibus Act. Pub.L. No. 86-624, 74 Stat. 411

(1960). At the same time, the United States imposed obli-

gations upon Hawaii with respect to these lands. In par-

ticular, it specified that such lands, and the income from

them

shall be held by [Hawaii] as a public trust for

the support of the public schools and other pub-

lic educational institutions, for the betterment of

the conditions of native Hawaiians . . . for the

development of farm and home ownership... ,

and for the provision of lands for public use.

Such lands, proceeds, and income shall be man-

aged and disposed of for one or more of the

foregoing purposes in such manner as the con-

stitution and laws of [Hawaii] may provide, and

42a

their use for any other object shall constitute a

breach of trust for which suit may be brought by

the United States.

See Admission Act § 5(f).

In its constitution, Hawaii declared that it would

hold a portion of the lands conveyed by § 5(b) as a

“public trust for native Hawaiians and the general pub-

lic.” Haw. Const. art. XII, § 4. Subsequently, the Hawaiian

legislature established the Office of Hawaiian Affairs

(hereinafter the “OHA”) to serve “native Hawaiians and

Hawaiians.” Haw. Const., art. XII, § 6. The state funded

the OHA in part by granting it a share of the income

produced by the “public land trust” created out of the

§ 5(b) lands. Haw. Rev. Stat. § 10-3.!

In this suit, filed under 42 U.S.C. § 1983, Price alleges

that the trustees of the OHA have violated the Admission

1 Among the lands expressly conveyed by § 5(b) were

those known as the Hawaiian “homelands”. A “compact”

between Hawaii and the United States strictly limits the man-

ner in which Hawaii may manage the homelands and the

income they produce. See Admission Act § 4; Keaukaha-Panaewa

Community Ass'n v. Hawaiian Homes Comm'n, 588 F.2d 1216,

1218-19 (9th Cir.) (“Keaukaha I”), cert. denied, 444 U.S. 826

(1979); Keaukaha-Panaewa Community Ass’n v. Hawaiian Homes

Comm'n, 739 F.2d 1467, 1469 (9th Cir. 1984) (“Keaukaha II”);

Price v. Hawaii, 764 F.2d 623, 625 (9th Cir. 1985), cert. denied, 474

U.S. 1055 (1986). The “public land trust” created by the Hawai-

ian constitution, however, does not include the homelands. See

Haw. Const., art. XII, § 4. Consequently, the trust proceeds

granted to the OHA are unrelated to the homelands, see Haw.

Rev. Stat. § 10-3; and whether State officials are managing the

homelands and the income they produce in conformity with

the compact between Hawaii and the United States is not at

issue in this case.

a ERA RNa + 2b an

SC ee Ae +S

}

;

43a

Act by managing income derived from § 5(b) lands in a

manner that contravenes § 5(f) of the Act. More specifi-

cally, he contends that the trustees have comingled

OHA’s share of that income with other OHA funds; that

they have expended none of it for the benefit of native

Hawaiians; and that they have used it instead for pur-

poses other than those listed in § 5(f). See Complaint,

G1 15, 14, 16.

Without filing an Answer to Price’s Complaint, the

trustees moved to dismiss the action. The district court

granted the motion on the grounds that (A) the court

lacks subject matter jurisdiction, and (B) the Complaint

does not state a claim upon which relief can be granted.

On appeal, Price takes issue with both of these rulings.

DISCUSSION

Having accepted the Complaint’s allegations as true,

and having construed the Complaint in the light most

favorable to Price, see Baker v. McNeil Island Corrections

Ctr., 859 F.2d 124, 127 (9th Cir. 1988), we hold that Price

has stated a claim and that the district court has jurisdic-

tion to hear it. We conclude therefore that the court’s

dismissal was erroneous.

A. Failure To State A Claim

The district court found that Price has not stated a

claim because the Admission Act does not impose the

obligations that Price asserts the trustees have violated.

This ruling is one of law and we review it de novo. See

44a

Thomas v. Carpenter, 881 F.2d 828, 829 (9th Cir. 1989), cert.

denied, 110 S. Ct. 1475 (1990).

Section 5(f) of the Admission Act directed unequivo-

cally that the lands conveyed to Hawaii in § 5(b), and the

income produced by them, “shall be managed and dis-

posed of for one or more” of five stated purposes. Admis-

sion Act, § 5(f). Because the OHA share of “public trust”

income at issue in this case derives directly from the

§ 5(b) lands, § 5(f)’s limitation on uses applies to that

income. In his Complaint, Price alleges that the trustees

have expended the income on purposes other than those

listed in § 5(f). See Complaint, {7 14, 16. Thus, the Com-

plaint states a claim to enforce the provisions of § 5(f) of

the Admission Act.

The fact that the trustees may, consistently with

§ 5(f), spend the income for purposes other than to bene-

fit native Hawaiians does not deprive Price of standing to

bring his claim. We recently considered this very ques-

tion, and determined that allegations such as those Price

has made are sufficient to show an “injury in fact”. See

Price, 764 F.2d at 630.2 In addition, allowing Price to

2 The trustees argue that the Price decision on standing

does not apply to this case because the relief sought in Price

was prospective, while the relief sought here is retrospective.

That difference, however, does not affect standing. We held in

Price that native Hawaiians had standing to compel future

compliance with the terms of § 5(f) even though compliance

would not necessarily result in use of § 5(f) assets to benefit

native Hawaiians. Following that precedent; we hold here that

Price, as a native Hawaiian, has standing to seek redress for

past violations of § 5(f} even though that redress may not

(Continued on following page)

45a

enforce § 5(f) is consistent with the common law of trusts,

in which one whose status as a beneficiary depends upon

the discretion of the trustee nevertheless may sue to

compel the trustee to aide by the terms of the trust. Sze

Restatement 2d of the Law of Trusts, § 214(1), comment a;

See also id. at § 391 (stating that plaintiff with “special

interest,” beyond that of ordinary citizen, may sue to

enforce public charitable trust).

The trustees argue that they may not be held liable

for breaching the terms of § 5(f) because the “OHA trust,”

which they manage and into which the OHA share of

§ 5(f) income was placed, is distinct from the trust created

by § 5(f). Transferring a portion of the § 5(f) trust income

to a state agency, however, did not dissolve or dilute the

restrictions on how that income may be spent. So long as

§ 5(f) trust income remained in the hands of the state, as

it did when transferred from the § 5(f) corpus to the OHA

corpus, the § 5(f) obligations applied. Naturally, we

accept that once the income has been “disposed of” or

“use[d]” by the state, there are no § 5(f) limitat’ons on

(Continued from previous page)

necessarily benefit native Hawaiians. Moreover, we note that

counsel for Price asserted at oral argument that among the

state-authorized purposes for which the OHA may spend its

funds, only one - the benefit of native Hawaiians - is autho-

rized by § 5(f). If Price succeeds in proving that the trustees

have misappropriated § 5(f) income and must return it to the

OHA or § 5(f) trust, he might attempt to show, perhaps in a

pendent claim, that the returned money must be used to bene-

fit native Hawaiians. Thus, Price has a real stake in enforcing

the terms of § 5(f).

46a

subsequent use; however, we reject the trustees’ sugges-

tion that Hawaii “disposed of” or “used” § 5(f) trust

income simply by transferring it to the OHA. Admission

Act § 5(f). Because the funds are still in state hands,

§ 5(f)’s restrictions apply to the use or disposal of the

income by OHA.

The trustees also maintain that, although Hawaii

itself may be bound by § 5(f), the trustees’ obligations

with respect to spending OHA funds are to state law

alone. The trustees’ position is squarely at odds with the

principle of § 1983 in general, and our recent Admission

Act decisions in particular. Any ordinary policeman sued

under § 1983 defendant is, in his official function, a

creature of the state, and his primary obligations are to

state law; yet, he is not thereby rclieved of the duty not to

deprive persons of their federal rights. In a similar vein,

the fourteenth amendment addresses itself to “states,”

but that does not mean that entities and agents inferior to

states are incapable of violating the amendment by

depriving citizens of due process and equal protection.

See, e.g., Sheuer v. Rhoads, 416 U.S. 232, 235 (1974) (holding

that state governor and state university president were

sueable under § 1983 for due process violations). Further-

more, the defendants in Keaukaha II, officers of the

Hawaiian Homes Commission, also answered to state law

in the execution of their official functions; yet, they were-

held properly subject to a § 1983 suit for breach of § 5(f).

See 739 F.2d at 1472.

B. Subject Matter Jurisdiction

The district court concluded that it lacks jurisdiction

to hear Price’s suit for two independent reasons: first,

47a

Price’s claim is state rather than federal in nature, and

therefore § 1983, the asserted basis of jurisdiction, is

unavailable; second, Price’s suit is against the trustees in

their official capacities, and therefore barred by the elev-

enth amendment. These issues are reviewable de novo. See

Keaukaha I, 588 F.2d at 1224-27 (federal nature of claim);

Keaukaha II, 739 F.2d at 1471-72 (same); BV Engineering v.

University of California at Los Angeles, 858 F.2d 1394, 1395

(9th Cir. 1988) (eleventh amendment immunity), cert.

denied, 109 S. Ct. 1557 (1989).

1. Nature of Price’s claim

The right Price claims is indeed federal; thus, he has

not failed to meet this requirement of § 1983. See 42 U.S.C.

§ 1983; Parratt v. Taylor, 451 U.S. 527, 536 (1981) (§ 1983

plaintiff must allege deprivation of federal, not state,

right). In Keaukaha II, we held that the right asserted by

the plaintiffs was federal because it was “specifically

protected by an Act of Congress, the Admission Act,

§ 5(f),” 739 F.2d at 1472. The § 5(f) trust obligation, we

said, was “rooted in federal law.” Id. Moreover, we

recently have characterized Keaukaha II as holding that

“§ 5(f) of the Admission Act creates a federal ‘right’

enforceable under 42 U.S.C. § 1983.” Price, 764 F.2d at 628;

see also Ulaleo v. Paty, 902 F.2d 1395, 1397 (9th Cir. 1990).

The source of the right Price asserts here is precisely the

same as the source of the right claimed in Keaukaha II,

namely § 5(f) of the Admission Act. Hence, the right Price

asserts also is federal, and § 1983 is available.

48a

2. Applicability of the eleventh amendment

Price is suing the trustees in their individual, rather

than official, capacities, and thus his suit is not barred by

the eleventh amendment. See Blaylock v. Schwinden, 862

F.2d 1352, 1354 (9th Cir. 1988) (noting that eleventh

amendment does not prohibit individual capacity suits);

cf. Kentucky v. Graham, 473 U.S. 159, 165-67 (1985) (observ-

ing that official capacity suits are equivalent to suits

against the entity itself, and raise eleventh amendment

concerns where the entity is a state). Although the Com-

plaint does not expressly state that Price is suing the

trustees themselves, as opposed to the state, the “basis of

the claims asserted and nature of relief sought” imply

that this must be so. See Central Reserve Life Ins. Co. v.

Struve, 852 F.2d 1158, 1161 (9th Cir. 1988) (relying on

these factors, rather than on caption of complaint, to

determine capacity in which defendant is being sued).

By seeking damages under § 1983, the Complaint

indicates that the intended defendants are the trustees as

individuals. See Blaylock, 862 F.2d at 1354 (“[DJjamage

actions brought under 42 U.S.C. § 1983 are generally

viewed as suits against the individual”); Demery v. Kup-

perman, 735 F.2d 1139, 1145-46 (9th Cir. 1984) (construing

§ 1983 damage action as individual capacity suit), cert.

denied, 469 U.S. 1127 (1985). To sue Hawaii itself, by

proceeding against the trustees in their official capacities,

would have been inconsistent with the very nature of

Price’s claim, since § 1983 applies only to deprivations of

federal rights by “persons,” and Hawaii is not a person

a nag NE ea, Ty eel Tons

ey oe = at

49a

under the statute. See 42 U.S.C. § 1983; Will v. Michigan

Dep't of State Police, 109 S. Ct. 2304, 2307-08 (1989).3

The trustees argue, and the district court found, that

Price’s suit must be against the trustees in their official

capacities because the Complaint’s allegations concern

the trustees’ conduct while performing their official func-

tions. This argument confuses the capacity in which a

defendant is sued with the capacity in which the defen-

dant was acting when the alleged deprivation of rights

occurred. The former need not coincide with the latter.

Clearly, under § 1983, a plaintiff may sue a state officer in

his individual capacity for alleged wrongs committed by

the officer in his official capacity. See, e.g., Blaylock, 862

F.2d at 1354 (observing that plaintiff who alleged failure

by governor to administer certain law could avoid elev-

enth amendment bar by amending complaint to claim

only damages against governor in his individual capac-

ity); Demery, 735 F.2d at 1146 (construing as individual

capacity suit an action against state medical board super-

visor who enforced allegedly ineffective disciplinary

order of board).4

3 Only if Price had sought prospective. relief could this

inconsistency have been avoided; such an action against the

trustees in their official capacities would not have been an

action against the state. See Will, 109 S. Ct. at 2311 n.10. Price,

however, has not sought prospective relief in his Complaint.

4 Mitchell v. Los Angeles Community College Dist., 861 F.2d

198 (9th Cir. 1988), cert. denied, 109 U.S. 2102 (1989), does not

support the trustees’ position. Mitchell held that the defendants

in that case “share[d] in [the state’s] eleventh amendment

immunity because they were sued in their official capacities.”

(Continued on following page)

50a

CONCLUSION

The district court erred in concluding that Price has

not stated a claim, and that the court is without jurisdic-

tion to hear it. The order of dismissal is therefore

REVERSED, and the case is REMANDED.

(Continued from previous page)

It did not expressly state the basis on which it had decided that

the action was an official capacity suit. See id. at 201-02. In that

case, it was apparently undisputed that the plaintiffs were

seeking damages from a California community college district,

and that the officials of the district were being sued in their

official capacity. The question was whether, under California

law, the district should be regarded as a state agency. In this

case, the plaintiffs have disavowed any claim for state funds,

and have made it clear they are seeking damages from the

personal estates of the individual defendants. The defendants

therefore do not share the state’s immunity from this suit.

5la

APPENDIX “F”

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MERVIN NAPEAHI, individually

and on behalf of all those

similarly situated,

Plaintiff-Appellant,

No. &7-1844

DC No.

a CV-85-1523-EMF

)

WILLIAM PATY, in his capacity}

as Director of the Department )

of Land and Natural Resources, )

State of Hawaii, )

)

ORDER

Defendant-Appellee.

(Filed Mar. 20, 1991)

Appeal from the United States District Court

for the District of Hawaii

Before: HUG, TANG, and KOZINSKI, Circuit Judges.

The panel, as constituted in the above case, has voted

to deny the petition for rehearing and to reject the sug-

gestion for rehearing en banc.

The full court has been advised of the en banc sug-

gestion and no judge of the court has requested a vote on

it. Fed. R. App. P. 35(b).

The petition for rehearing is denied and the sugges-

tion for a rehearing en banc is rejected.

52a

APPENDIX “G”

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAI'I!

MERVIN NAPEAHI, SIERRA ) CIVIL NO.

CLUB, and HAWAI’I AUDUBON _) 85-1523

SOCIETY, ) FIRST

Plaintiffs, AMENDED

COMPLAINT

~ ) FOR

JOHN O. MARSH, in his capacity} DECLARATORY

as the Secretary of the Army; RELIEF;

COL. MICHAEL M. JENKS, in his } SUMMONS

capacity as District Engineer, U.S.

Ane Seine of Engineers; LEE . gs _—S

THOMAS, in his capacity as )

Administrator, U.S. Environmental

Protection Agency; JUDITH AYRES, )

in her capacity as Regional )

Administrator of the U.S. EPA )

Region IX; TRANSCONTINENTAL

DEVELOPMENT COMPANY, ATPA

LAND COMPANY, LESLIE S. )

MATSUBARA, in his capacity as )

the director of the Department of )

Health, State of Hawaii, SUSUMU

ONO, in his capacity as director

of the Department of Land and

Natural Resources, State of Hawaii,

~~"

)

Defendants. )

)

FIRST AMENDED COMPLAINT

FOR DECLARATORY RELIEF

1. Plaintiffs MERVIN NAPEAHI, SIERRA CLUB,

and HAWAI’I AUDUBON SOCIETY bring this action

53a

primarily to enforce the water certification requirements

of Section 401 of the Clean Water Act, 33 U.S.C. § 1341.

These requirements mandate that the State of Hawaii or

the U.S. Environmental Protection Agency certify that

any dredge and fill activity in U.S waters will comply

with state water quality standards before the U.S. Army

Corps of Engineers (hereinafter “CORPS”) issues a

dredge and fill permit pursuant to Section 404 of the Act.

2. Defendants MARSH and JENKS issued a dredge

and fill permit which allows blasting and excavation of a

five-acre swimming lagoon and other related facilities for

a tourist resort complex to be built on the shoreline at

Waikoloa near Waiulua Bay, South Kohala, located on the

Island of Hawai'i. However, neither the state nor the EPA

certified that the activity would comply with state water

quality standards. Accordingly, Plaintiffs petition this

Court to declare such permit is to be null and void and to

enjoin the Corps and Defendants TRANSCONTINENTAL

DEVELOPMENT CO. and ATPAC LAND CO. from rely-

ing on or acting pursuant to such permit.

3. Plaintiffs also seek to have this court declare as a

matter of pendent jurisdiction that the acts of the state

defendants will result, unless corrected, in the loss and

abandonment of ceded lands, for no compensation, in

violation of the trust duties those defendants owe Plain-

tiffs.

JURISDICTION

4. This Court has jurisdiction over this action pur-

suant to 28 USC §§ 1331, 1337, 1343(3), 1361; 33 USC

§ 1365 and pendent jurisdiction. The claims arise under 5

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USC § 701-706; 33 USC §§ 403, 1311, ei seq.; and Article XI,

Section 9 of the Hawai'i State Constitution. Plaintiffs sent

to Defendant THOMAS and AYRES the required 60-day

notice of potential violations of the Clean Water Act

pursuant to 33 USC § 1365.

PARTIES

5. Plaintiff MERVIN NAPEAHL is a 45 year-old resi-

dent of Honalo, Kona, Hawai'i. He is a pure Hawaiian

who has frequented the area on the island of Hawai'i

known as Waiulua Bay, adjacent to the ahupua’a of Waik-

oloa to gather fish, opae, and other marine food products

like opihi, limu, and squid from the sea and anchialine

ponds in the area, for subsistence purposes, to camp, and

to enjoy the aesthetic, open space, marine, and terrestrial

resources of the area. He seeks to protect and conserve

these resources for future generations as his Hawaiian

ancestors have done for centuries.

6. Plaintiff SIERRA CLUB is a nonprofit corporation

organized and existing under the laws of the State of

California, with its principal place of business in the City

and County of San Francisco, State of California. SIERRA

CLUB is a national conservation organization with

approximately 350,000 members of whom approximately

2,000 reside in the State of Hawai'i. The general purposes

of the SIERRA CLUB include the enjoyment, enhance-

ment, protection and preservation, by all lawful means, of

the forests, waters, wildlife, wilderness, and other natural

and scenic resources of the United States and the Earth in

general. The SIERRA CLUB is committed to preserving

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and maintaining the world’s remaining natural ecosys-

tems, such as the unique and rare Waikoloa anchialine

ponds. Many Hawai'i Sierra Club members have visited

the site of the proposed resort for recreation and enjoy-

ment of the natural, conservational, and aesthetic

resources of the area, including the anchialine pond com-

plex found there.

7. Plaintiff HAWAI’I AUDUBON SOCIETY (HAS) is

a nonprofit association formed under the laws of the State

of Hawai'i, having about 1500 members of whom approx-

imately 1200 reside in the state of Hawai'i. HAS was

formed to further the protection and conservation of

Hawi'i’s native wildlife and the ecosystem which support

that wildlife. Many HAS members have visited the pro-

posed resort site to enjoy the scenic, recreational, and

biological resources of the area, including the complex of

anchialine ponds.

8. The above-described aesthetic, conservational,

and recreational interests of SIERRA CLUB and HAWAI'I

AUDUBON SOCIETY and their members have been, are,

and will continue to be adversely affected and irreparably

injured by the Corps’ decision to issue the Section 404

permit and the EPA’s refusal to veto the permit, as well as

the effects of the construction activities on the resources

they seek to protect.

9. Defendant JOHN O. MARSH, JR., is the Secretary

of the Army. In this capacity he is ultimately responsible

for the decision of the Corps to issue the permits pur-

suant to Section 404 of the Clean Water Act and he is also

ultimately responsible for enforcement of Section 10 of

the Rivers and Harbors Act of 1899, which regulates any

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obstructions to navigable U.S. waters. He is the Army

official administratively responsible for all Corps deci-

sions.

10. Defendant Colonel MICHAEL M. JENKS is the

District Engineer for the U.S. Army Corps of Engineers,

Pacific Ocean Division, Honolulu District (hereafter

“CORPS”). He is the primary administrative person

responsible on the district level of the CORPS for the

decision to issue a Section 404 dredge and fill permit

which would allow dredging and filling for construction

of the planned Waikoloa Beach Resort.

11. Defendant LEE THOMAS is the Administrator

of Defendant Environmental Protection Agency (EPA),

the primary federal agency responsible for implementa-

tion of and oversight over the Clean Water Act. He is

ultimately responsible for all EPA actions and must con-

sult with Defendants MARSH and JENKS if the EPA

disagrees with a CORPS decision to grant a permit.

12. Defendant JUDITH AYRES is the Regional

Administrator of Region IX of the EPA, the lowest admin-

istrative level of this agency which was responsible for

reviewing the decision of the CORPS to issue the Section

404 permit involved in this action.

13. Defendant TRANSCONTINENTAL DEVELOP-

MENT COMPANY is a general partnership consisting of

Transcontinental Corporation, a California corporation

whose principal place of business is Santa Barbara, Cali-

fornia and Motyko Inc., a Texas corporation whose princi-

pal place of business is Fort Worth, Texas. It is a co-

aus ee Se

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applicant with Defendant ATPAC LAND CO. for the Sec-

tion 404 permit as developer and partial landowner of the

planned Waikoloa Beach Resort.

14. Defendant ATPAC LAND COMPANY is a gen-

eral partnership consisting of Ronald F. Boeddeker whose

address is 225 Las Tunas Road, Santa Barbara, California

and SRL Enterprises, a Texas general partnership whose

principal place of business is Fort Worth, Texas. It is co-

applicant with Defendant TRANSCONTINENTAL

DEVELOPMENT CO. for the Section 404 permit as partial

landowner of the planned Waikoloa Beach Resort.

15. Defendant LESLIE S. MATSUBARA is the direc-

tor of the State of Hawaii Department of Health, the state

agency encharged with the responsibility of enforcing

water quality standards in the state under state and fed-

eral law. He is ultimately responsible for any department

certification of compliance with state water quality stan-

dards adopted pursuant to the Clean Water Act.

16. Defendant SUSUMU ONO is the director of the

State of Hawaii Department of Land and Natural

Resources, the state agency encharged with the trust duty

to protect and manage the ceded land trust, in part, for

the benefit of native Hawaiians. He is also ultimately

responsible for any shoreline certifications issued by the

state.

FACTUAL ALLEGATIONS

17. In September, 1984, Transcontinental Develop-

ment Company (Transcontinental) applied to the CORPS

for a Section 404 dredge and fill permit to excavate a five-

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acre artificial lagoon and fill beach as a part of a planned

1,250-room resort complex involving a luxury hotel and

luxury condominium to be located at Waikoloa, on the

leeward coast of the island of Hawai'i, near Waiulua Bay.

18. Because this application requested authorization

to excavate and fill eighty anchialine ponds without any

mitigation measures, the CORPS initially refused to

accept the application until it could negotiate an

amended application to incorporate such measures.

19. An anchialine pond is a water body having

measurable salinities and tidal fluctuations, but isolated

from the sea. These ponds are essentially brackish water

ponds, forming a unique ecosystem for several rare spe-

cies of shrimp, two of which are found in Waikoloa.

20. The area proposed for dredging contains

approximately 200 anchialine ponds. This site contains

the single, largest concentration of anchialine ponds in

the State of Hawai’i, where they are only known to exist

on Maui, O’ahu, and Hawai'i.

21. The ponds are included in the definition of U.S.

navigable waters pursuant to the Clean Water Act.

22. These ponds comprise approximately a third of

approximately 650 such ponds known to exist in Hawai'i,

and are not found in otner parts of the U.S.

23. Because of this distinction, the EPA considers

these ponds a “special aquatic site” as defined in 40 CFR

Part 230, Subpart E, which entitles it to special protection

under the CWA.

24. The coastal waters off the shoreline in the area

immediately adjacent to the planned lagoons and the

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water of the ponds are rated Class AA by the Department

of Health, State of Hawai'i, the highest rating assigned to

coastal waters in Hawai'i pursuant to the Clean Water

Act.

25. Plaintiff NAPEAHI has frequented this coastal

area to gather opihi, limu, fish, for subsistence purpose,

and to camp, and enjoy its natural coastal and open space

resources.

26. Many other residents of West Hawai’i have uti-

lized this area for similar purposes.

27. In January, 1985, both Transcontinental and

ATPAC Land Company (ATPAC), a landowner of a por-

tion of the Waikoloa Beach Resort (hereafter “WBR”)

area, jointly filed another application for a Section 404

permit for a more comprehensive resort plan.

28. Defendant JENKS accepted this application and

began to process without requiring a certification of com-

pliance with state water quality standards from the appli-

cants.

29. Pursuant to this application, Defendant JENKS

prepared a draft Environmental Impact Statement (here-

after “DEIS”) on the proposed action, which the EPA

reviewed.

30. Defendant JENKS prepared a final EIS (FEIS)

covering its proposed approval of the Section 404 permit

which fails to analyze and identify all the environmental

impacts.

31. The FEIS does not mention the uncompensated

loss of approximately 2-3 acres of ceded lands which

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were abandoned by the state when it altered the certified

shoreline of Waialua Bay.

32. In connection with this planned dredging and

filling, no person applied to an authorized state “certi-

fying agency” or the EPA for a certification of compliance

with the Water Quality Standards of the State of Hawai'i,

pursuant to Section 401 of the Clean Water Act.

33. Accordingly, neither the EPA or the CORPS has

determined, at any time, whether such activity will vio-

late the state’s Water Quality Standards as defined under

Administrative Regulations § 11-54-04.

34. Defendant Matsubara refuses even to make such

a determination on the basis that there are no effluent

limitation standards for construction activity which apply

to the planned resort.

35. The State of Hawai'i has failed to grant any state

agency the legal “authority” to be the “certifying agency”

as defined in 40 C.F.R. § 121.1(e).

36. The EPA has not certified that the planned

dredging and filling will comply with the state’s Water

Quality Standards.

37. Thus, no agency has ever given public notice

regarding application for certification of compliance with

Section 401 Clean Water Act standards nor waived their

opportunity to certify compliance.

38. The CORPS Defendants were aware of the appli-

cants’ failure to certify compliance with the state Water

Quality Standards prior to the CORPS’ decision to issue

the Section 404 permit.

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39. On various occasions prior to December 10,

1985, Plaintiffs and several other interested parties noti-

fied EPA Defendants THOMAS and AYRES of the lack of

a Section 401 certification of compliance with state Water

Quality Standards prior to the issuance of Section 404

permit and the potential violation of the CWA.

40. EPA Defendants AYRES and THOMAS refused

to veto the pending Section 404 permit despite an oppor-

tunity to do so.

41. On December 20, 1985 Defendant JENKS issued

a Section 404 permit for dredge and fill activity at the

Waikoloa Beach Resort site to Defendants TRANSCONTI-

NENTAL DEVELOPMENT CO. and ATPAC LAND CO.

without obtaining Section 401 water quality certification

or waiver of certification requirements.

42. Defendant JENKS, MARSH, THOMAS, and

AYRES have refused to require the private defendants to

certify that they will comply with the state water quality

standards or to compel the state to apply those standards

in this instance.

43. As a condition attached to the permit, Defen-

dant JENKS required the private Defendants to purpor-

tedly mitigate the planned destruction of 65-70% of the

valuable and unique anchialine ponds located on the

project site by constructing artificial ponds to substitute

for the destroyed ponds.

44. Defendant JENKS required the developers to

submit a pond recreation plan for this purpose to the

Corps for review and approval prior to implementing

mitigation measures.

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45. On two past cccasions, the private defendants or

their agents illegally placed fill material upon submerged

lands located at the inlet connecting Waialua Bay and the

open anchialine ponds adjacent to the bay, without autho-

rization from the Corps or the State of Hawaii.

46. This fill created a land bridge across the inlet

over property designated as submerged lands in previous

surveys of the shoreline areas.

47. After citation and legal action by the Corps, the

private defendants removed only a portion of the fill over

submerged land.

48. The private Defendants will be using the

remaining fill land without compensation to the State of

Hawaii.

49. In r

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