Opposition Brief — Albino v. Machado

- | oT Court, U.S, |

Pa ee

CLERK

In The Le none |

Supreme Court of the United States

October Term, 1996

*

LOUELLA O. W. ALBINO, ALEXANDER R. K. BISHAW,

LORRAINE K. BORDEN, MIRIAM K. BRIONES,

LOUIS HAO, JR., NANCY KAHINU, EVELYN K.

KANAWALIWALI, EMILY W. AKI SWABA, GEORGE R.

P. KAHINU, JR., JON K. NAEOLE, DAYNA L. NAEOLE,

WEYMOUTH KAMAKANA, JOHN E. KELLY, LOTTIE

BURROWS, ARTHUR K. KAAI, DANIEL KEKAHUNA,

ALICE K. DEMELLO, SUE ANN M. M. HASEGAWA,

PRISCILLA HOLOKAI, WAYNE NAEOLE and

WILLIAMETTE P. NEUHART,

Petitioners,

V.

COLETTE Y. MACHADO, LEIFF KOA BUSH, MARTIN

D. L. KAHAE, KELSON “MAC” POEPOE, et al.,

Respondents.

+

On Petition For A Writ Of Certiorari To The

Supreme Court Of The State Of Hawaii

+

RESPONDENTS’ BRIEF IN OPPOSITION

¢

ALAN T. MuraAKAmiI"*

Paut F. NAHoaA Lucas

Cari. C. CHRISTENSEN

*Counsel of Record

Native HawatlaAn LEGA!

CORPORATION

Suite 1205, 1164 Bishop Street

Honolulu, Hawaii 96813

Telephone: (808) 521-2302

Attorneys for Respondents

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

OR CALL COLLECT (402) 342-2831

I.

Il.

Il.

IV.

V.

TABLE OF CONTENTS

PETITIONERS DID NOT PRESERVE THEIR

“TAKING” CLAIM IN THE COURT BELOW

AND THUS CANNOT RAISE IT HERE......

THE HAWAII SUPREME COURT CORRECTLY

INTERPRETED THE SCOPE OF PETI-

TIONERS’ DUTIES UNDER THE HAWAIIAN

HOMES COMMISSION ACT ................

PETITIONERS’ ALLEGATIONS OF A REGU-

LATORY TAKING LACK ANY SUPPORT IN

ES oo bea eee ea Sa ak oweset eaeas

PETITIONERS CANNOT SUPPORT THEIR

CLAIMS OF INJURY TO “INVESTMENT-

DED EAP EG CAEN ccc cen ccncccvencs:

IE iwndk as toeeewanansensns aia aes

SPE WE? Ends ee ni vaeu aus ee dceueetaue stein

12

ii

TABLE OF AUTHORITIES

Page

Cases

Adolpho v. Kealoha, Civ. No. 243 (Second Circuit

Court, State of Hawail, 1960)... 2. cccccscvcccsccces 9

Ahuna v. Department of Hawatian Home Lands, 64

Haw. 327, 600 P.26 2261 CIGGE) cscs cidensissacevees 2

Associated Engineers & Contractors, Inc. v. State of

Hawaii, 58 Haw. 322, 568 P.2d 512 (1977)........... 6

Bush v. Hawatian Homes Commission, 76 Haw. 128,

S7O P26 L272 (USI sec acess vers asereeasenns 3, 4, 13

Bush v. Watson, 81 Haw. 474, 918 P.2d 1130 (1996)

Caneseeh¥eesnenssee setae i; * Sea ca, Se

Corporation of Presiding Bishop v. Hodel, 830 F.2d

374 (D.C. Cir. 1987), cert. denied, 486 U.S. 1015

(29GG) onc ccvaccvucsadesietseseeviawenal abe TeTauns 8

Ewert v. Bluejacket, 259 U.S. 129 (1922) .............. 11

Herndon v. State of Georgia, 295 U.S. 441 (1935)....... 7

Hughes v. Washington, 389 U.S. 290 (1967) ............ 8

King v. United Commercial Travelers of America, 333

Sat BOD (EDGR) wc ccccnvasstteseateus eenenehestenews 9

Lucas v. South Carolina Coastal Council, 505 U.S.

LOOP CIOUDD occ cans vadesncsiteu eee ees 12

Public Access Shoreline Hawait v. Hawaii County

Planning Commission, 79 Haw. 425, 903 P.2d 1246

(1995), cert. denied sub nom. Nansay Hawaii, Inc.

v. Public Access Shoreline Hawaii, 116 S.Ct. 1559

(1908) . os ccacctcnsensines ee ae 8

Radio Station WOW v. Johnson, 326 U.S. 120 (1945) ..... 7

iil

TABLE OF AUTHORITIES —- Continued

Page

Sangre de Cristo Development Co. v. United States,

932 F.2d 891 (10th Cir. 1991), cert. denied, 503

IRR eet SPR Rare sua pner ASM ge msg 13

Stevens v. City of Cannon Beach, 510 U.S. 1207

eS eer eel Uys ou Ne Wha s ou oss bite oad 8

United States v. Algoma Lumber Co., 305 U.S. 415

EES EE ES SOP IEE ROE A Oe EP ae POT Ey Tre 13

Hawat STATE CONSTITUTION

ns Sea dal yelay us cdkwe Chsedueesebaateesa 1

HawatlAN Homes Commission ACT

ee Ye ete bee sinha de duel eek oneav 1

er es ccc uae aes chance eee nes 2

tac a tebe bcbrNe dca tes se bien 2

eo CE a a es pee a hones eeae 4

ee shes ws wee «46s 2, 4, 8, 10, 11, 12

Hawan ReviseEpD STATUTES

RG cedunnteuevannncsosesevrnnaadtessesese' 10

CED Nas cNeeh och be eeneny ev ccuyeers russ sabes. “

ee oe eee th ate eeek days se cghenbeavuss 2

Hawan Rutes OF APPELLATE PROCEDURE

Rule 40(b), Hawaii Rules of Appellate Procedure ..... 7

Rule 40(c), Hawaii Rules of Appellate Procedure ..... 7

MISCELLANEOUS

Hawaii Administrative Rules Section 10-3-35....... ie

RESPONDENTS’ BRIEF IN OPPOSITION

Respondents COLETTE Y. MACHADO, LEIFF KOA

BUSH, MARTIN D. L. KAHAE, and KELSON “MAC”

POEPOE (collectively referred to as “Respondents”)

respectfully request that this Court deny Petitioners’ Peti-

tion for Writ of Certiorari (hereinafter “Petition”), which

seeks review of the Hawaii Supreme Court’s opinion

below. That opinion is reported as Bush v. Watson, 81

Haw. 474, 918 P.2d 1130 (1996) (“Bush II”) and is reprinted

in the Petition at Appendix A.

*

STATEMENT OF THE CASE

The Hawaiian Homes Commission Act of 1920, 42

Stat. 108 (July 9, 1921), as amended (hereinafter

“HHCA”), reprinted in 1 Hawaii Revised Statutes (1993)

(“H.R.S.”) 167 et seqg., established a homestead program

for native Hawaiians.! The HHCA was adopted as a

federal-state compact and as a provision of the Constitu-

tion of the State of Hawaii pursuant to § 4 of the Hawaii

Admission Act.? In these enactments “the federal

1 “Native Hawaiians” are defined in the HHCA as

including “any descendant of not less than one-half part of the

blood of the races inhabiting the Hawaiian Islands previous to

1778.” § 201(7), H.H.C.A.

2 Pub. L. 86-3, 73 Stat. 4 (Mar. 18, 1959) (providing that as a

compact with the United States the HHCA shall be adopted as a

provision of the Constitution of the State of Hawaii); see also

Haw. Const., Art. XII, §§ 1-3 (adopting HHCA as “a law of the

State,” § 1, as “a compact with the United States,” §§ 2, 3, and

“as a provision of the constitution of this State,” § 3).

government set aside certain public lands to be consid-

ered Hawaiian home lands to be utilized in the rehabilita-

tion of native Hawaiians, thereby undertaking a trust

obligation benefiting the aboriginal people . . .

[and] . . . the State of Hawaii assumed this fiduciary

obligation upon being admitted to the Union as a state.”

Ahuna v. Department of Hawaiian Home Lands, 64 Haw. 327,

338, 640 P.2d 1161, 1168 (1982). The management and

operation of the Home lands program is placed with the

Hawaiian Homes Commission (“the Commission”), a

nine member body appointed by the governor. § 202,

H.H.C.A.; § 26-17, H.R.S.

In fulfilling the statutory goals of the Hawaiian

Home Lands program, the Commission issues leases for a

term of 99 years at $1.00 per year to qualified native

Hawaiians for farming, ranching and residential pur-

poses. All lessees are subject to certain statutory condi-

tions expressly set forth in § 208 of the HHCA which

regulate the use of their homestead, “whether or not

stipulated in the lease.” § 208, H.H.C.A.

One condition states that the lessee “shall not in any

manner transfer to, or otherwise hold for the benefit of

any other person or group of persons or organizations of

any kind, except a native Hawaiian or Hawaiians, and

then only upon the approval of the department... . ”

§ 208(5), H.H.C.A. In implementing § 208(5), the Commis-

sion and the Department of Hawaiian Home Land's (“the

Department”) administrative rules declare that a lessee

may not “enter into any contract, joint venture, agree-

ment or other arrangement of any sort with a third per-

son on lands covered by [a] lessee’s lease” without the

written approval of the Commission. H.A.R. § 10-3-35.

Since 1980, Petitioners, who are all lessees of the

Hawaiian homestead program, have entered into Third

Party Agreements*® (hereinafter “TPAs”) with Respon-

dents Larry Jefts, et al., non-Hawaiian farmers, for the

occupation, use, and cultivation of their agricultural

homestead lots on Moloka’‘i, without the approval of the

Commission. Bush v. Hawaiian Homes Commission, 76 Haw.

128, 132, 870 P.2d 1272, 1281 (1994) (“Bush I”). Petitioners

are paid an average of $150.00 per month for the use of

their lots, and, at least one non-Hawaiian farmer, Larry

Jefts, has amassed close to 495 acres of homestead land,

under thirteen different leaseholds. Id. The operations of

these large plantations have been injurious to Respon-

dents Bush, Kahae and Poepoe, who seek to become

economically self-sufficient by farming their own agri-

cultural lots, by infecting them with melon fly infestation,

pesticide drift, and by subjecting them to unfair subsi-

dized competition benefiting from substantial economies

of scale.

In December of 1991, the Department notified Peti-

tioners that their existing TPAs did not comply with HAR

§ 10-3-35, and were therefore unlawful. Bush I, 76 Haw. at

132, 870 P.2d at 1281. In May of 1992, the Commission

approved Petitioners’ TPAs over Respondents’ objections.

Id., 76 Haw. at 133, 870 P.2d at 1281. Respondents had

requested a “contested case” administrative hearing in

which they could appear and formally contest the

3 A Third Party Agreement (“TPA”) is an agreement

whereby the lessee of an agricultural homestead allows a

stranger to the lease to use his or her land for farming or

pastoral purposes.

approval of such TPAs, but this request was denied by

the Commission. Id. This denial was affirmed on appeal.

Id., 76 Haw. at 136, 870 P.2d at 1281. The Bush I court,

however, was careful to point out that Respondents were

“not barred from contesting the Commission’s actions

through alternative means... ”. Id., 76 Haw. at 137, 870

P.2d at 1281.

Immediately upon the issuance of the Bush I opinion

in 1994, Respondents filed a new suit, the present action,

seeking declaratory and injunctive relief and claiming

that the existing TPAs violated sections 208(4) and (5) of

the HHCA. The trial court granted summary judgment in

favor of Petitioners, Respondents Hawaiian Homes Com-

mission and Department of Hawaiian Home Lands (here-

inafter “State Respondents”), and Respondents Larry

Jefts et al., concluding that there was no violation of the

HHCA. Bush II, 81 Haw. at 478, 918 P.2d at 1141.

On appeal, the Hawaii Supreme Court, in a unani-

mous opinion, reversed the trial court’s dismissal of

Respondents’ claims. Id., 81 Haw. at 478, 918 P.2d at 1141.

At the outset, the court noted that “there is no authorita-

tive case law in this jurisdiction interpreting HHCA

208(5),” Id., 81 Haw. at 485, 918 P.2d at 1141, and that “the

nature of an agreement between homestead lessees and

third parties must be examined closely to determine

whether it complies with [the] statutory restrictions [set

forth in § 208(5)].” Id., 81 Haw. at 486, 918 P.2d at 1142.

After a careful examination of applicable Hawaiian real

property law, the court found that the TPAs “address

specific parcels of property and are arguably for fixed

terms because they require fixed notification periods for

revocation”, and thus declared that the approved TPAs,

on their face, transfer “at least a portion of the lessees’

extant interest in their homesteads” in violation of

§ 208(5). Id., 81 Haw. at 487, 918 P.2d at 1143. Accordingly,

the court ordered that the lower court’s order granting

summary judgment in favor of the Petitioners, State

Respondents, and Respondents Jefts et al. be reversed,

and that summary judgment be entered in favor of

Respondents. Id., 81 Haw. at 487, 918 P.2d at 1143. From

this judgment, Petitioners now seek review in this Court.

State Respondents and Respondents Larry Jefts et al.

chose not to appeal the Supreme Court's decision.

a

REASONS FOR DENYING THE PETITION

The Hawaii Supreme Court properly interpreted the

HHCA in defining Petitioners’ responsibilities there-

under, and, in any event, its interpretation of this unique

Congressional enactment, a federal-state compact incor-

porated as part of the Constitution of the State of Hawaii

for the purpose of providing benefits to native Hawai-

ians, raises no legal questions of more than purely local

significance and implicates no substantial issues of fed-

eral law. Considerations of federalism argue strongly

against review of this state court decision affecting only a

particular state-run benefit program. Accordingly, Peti-

tioners fail to satisfy criteria traditionally applied by this

Court in determining whether or not to grant a Writ of

Certiorari.

PETITIONERS DID NOT PRESERVE THEIR “TAK-

ING” CLAIM IN THE COURT BELOW AND THUS

CANNOT RAISE IT HERE

Petitioners’ sole Question Presented for Review

herein is their claim that the “Hawaii Supreme Court has

effected a regulatory and/or judicial taking of private

property without just compensation in violation of the

Takings Clause of the Fifth Amendment to the United

States Constitution. ...” Pet., at 2. Petitioners did not,

however, raise this issue in their Answerir:g Brief before

the Hawaii Supreme Court,‘ but instead first advanced it

in their Motion for Reconsideration filed after the Hawaii

Supreme Court issued its opinion in this case.5 “A ques-

tion not previously raised in the course of an appeal will

not ordinarily be considered on a petition for rehearing,”

Associated Engineers & Contractors, Inc. v. State of Hawaii,

58 Haw. 322, 322, 568 P.2d 512, 513 (1977) (citations omit-

ted), and Petitioners’ Motion for Reconsideration failed to

suggest any reason why Petitioners should have been

exempted from this generally applicable restriction. Peti-

tioners compounded their error by seeking support for

their new arguments in documents not previously made a

4 See, Lessee-Defendants-Appellees’ Answering Brief and

Certificate of Service filed November 24, 1995, attached as

Exhibit B to ..ppendix “F” of the Petition.

> See, Motion for Reconsideration, Memorandum in

Support of Motion for Reconsideration, Certificate of Good

Faith, Affidavit of Ward F.N. Fujimoto, Exhibits “A”-“C”, and

Certificate of Service attached as Appendix “F” to the Petition

(hereinafter “Petitioner’s Motion for Reconsideration”).

part of the record.® Petitioners cited no authority for this

highly unusual procedure” and offered no excuse for

their failure to present these documents in a more timely

manner. The Hawaii Supreme Court properly denied

Petitioners’ Motion for Reconsideration without address-

ing the newly raised issues contained therein.? “The long-

established general rule is that the attempt to raise a

federal question after judgment, upon a petition for

rehearing, comes too late, unless the court actually enter-

tains the question and decides it,” Herndon v. State of

Georgia, 295 U.S. 441, 443 (1935), and Petitioners’ failure

to preserve their “takings” claim for review before the

Hawaii Supreme Court is fatal to their efforts to seek

review here. Radio Station WOW v. Johnson, 326 U.S. 120,

128 (1945).

6 See, Exhibit C, attached to Appendix “F” of the Petition.

7 Cf. Rule 40(b), Hawaii Rules of Appellate Procedure

(prescribing the contents of a motion for reconsideration and

making no provision for the submission with such a motion of

new evidence not previously made a part of the record).

8 Respondents were not asked to comment on Petitioner’s

procedural irregularities as Rule 40(c) ‘£ the Hawaii Rules of

Appellate Procedure provides in part that “[n]o answer to a

motion for reconsideration or reply to an answer will be

received unless requested by the court.”

% See, Motions for Reconsideration filed 7/8/96, attached as

Appendix “B” to the Petition.

Il.

THE HAWAII SUPREME COURT CORRECTLY INTER-

PRETED THE SCOPE OF PETITIONERS’ DUTIES

UNDER THE HAWAIIAN HOMES COMMISSION ACT

Petitioners ask this Court to hold the Hawai’‘i

Supreme Court’s interpretation of § 208(5) of the HHCA

as amounting to a “judicial taking” of their leasehold

interest without payment of just compensation. Pet., at

15-20. Although members of this Court have on occasion

expressed support for a “judicial taking” theory resem-

bling that which Petitioners now espouse,!° “[t]he ques-

tion of whether courts, as opposed to legislative bodies,

can ever “take” property in violation of the Fifth Amend-

ment is an interesting and by no means settled issue of

law.” Corporation of Presiding Bishop v. Hodel, 830 F.2d 374,

381 (D.C. Cir. 1987), cert. denied, 486 U.S. 1015 (1988). In

any event, Petitioners’ belated efforts to cobble together a

factual record to support a judicial takings claim from a

melange of supposed “admissions” and documents never

properly admitted into the record on appeal are insuffi-

cient to support such a claim under any reasonable stan-

dard.

Petitioners claim that they were entitled to rely upon

a previous ruling on the legality of TPAs under § 208(5)

10 See Hughes v. Washington, 389 U.S. 290, 296-98 (1967)

(Stewart, J, concurring); Stevens v. City of Cannon Beach, 510 U.S.

1207 (1994) (Scalia, J, joined by O’Connor, J, dissenting from

denial of petition for writ of certiorari); see also Public Access

Shoreline Hawaii v. Hawaii County Planning Commission, 79 Haw.

425, 451, 903 P.2d 1246, 1272 (1995), cert. denied sub nom. Nansay

Hawaii, Inc. v. Public Access Shoreline Hawaii, 116 S.Ct. 1559

(1996).

issued by a state trial court, Pet., at 19 (citing Adolpho v.

Kealoha, Civ. No. 243 (Second Circuit Court, State of

Hawai’‘i, 1960) is wholly without foundation as such trial

court opinions have no binding precedential effect under

Hawai’‘i law,!! and, in ary event, the contentious history

of TPAs under the HHCA, described in detail in Bush II,

&1 Haw. at 483, nn.13 & 14, 918 P.2d at 1139, nn.13 & 14,

contradicts any claim that Petitioners could reasonably

rely on the legality of TPAs.

Petitioners’ claim that the Hawaii Supreme Court’s

decision deprives them of all economic use of their lease-

holds hinges solely on a blatant mischaracterization of

Respondents’ argument below “that it is not economically

viable to operate a homestead farm competing against

such large-scale operations [as those of Jefts, et al.].” Pet.,

at 17. In fact, however, Respondents’ argument has been

that they are unable to compete against such large-scale

operations when those non-Hawaiian farmers benefit

unlawfully from the subsidized land and irrigation water prop-

erly available under the HHCA only to native Hawaiians.’

11 Bush II, 81 Haw. at 483 n.14, 918 P.2d at 1139 n.14

(recognizing that the decision of a state circuit court on an issue

of law, upon which Petitioners now seek to rely, did not bind the

Hawaii Supreme Court); see also King v. United Commercial

Travelers of America, 333 U.S. 153, 161 (1948) (unappealed

decisions of state trial court are not controlling as “authoritative

expositions of that State’s ‘law’ ”).

12 As discussed in Respondents’ Opening Brief before the

Hawai‘i Supreme Court, Respondents Larry Jefts’ et al.’s

farming operations on Petitioner’s leaseholds benefit from

water provided to those leaseholds at nominal cost by the

federally subsidized Moloka’i Irrigation System. See, Chapter

168, H.R.S..

10

Respondents are quite willing to take their chances in

competition with Respondent Jefts et al.’s operations on

non-trust lands, as those operations do not benefit from

subsidies under the HHCA intended only for native

Hawaiians. Proof of Petitioners’ claims of financial non-

viability would require proof as well of the much broader

conclusion that the HHCA’s agricultural homestead pro-

gram as a whole, together with all other State of Hawaii

programs intended to foster small-scale agriculture such

as the Hawai‘i Department of Agriculture’s Agricultural

Park program, Chapter 166, H.R.S., are economically non-

viable and are therefore futile.

This is not a case in which a court has radically

departed from well-established law by adopting a pretex-

ual interpretation of state real property law to deprive an

owner of his or her property rights; instead, the Hawai'i

Supreme Court has merely determined, as a matter of first

impression, the scope of the rights and responsibilities of

the beneficiaries of a statutory entitlement program by

asking whether the TPAs Petitioners seek to execute are

lawful under § 208(5) of the Hawaiian Homes Commis-

sion Act, which prohibits a lessee from “transfer[ring] to

or otherwise hold[ing] for the benefit of, any other per-

son... except a native Hawaiian . . . or to sublet the

lessee’s interest in the [trust land leased to them].”

§ 208(5), H.H.C.A.

Petitioners’ extensive discussion (at Pet., 7-15), that

Bush II is inconsistent with prior Hawai‘i case law which

distinguish between license and leasehold interests, is

without foundation as the result here turns on the lan-

guage of the particular TPAs in question and the statu-

tory rights and responsibilities of a government fiduciary

11

and of the beneficiaries of the HHCA. The powers of the

former entity and the rights of the latter group are neces-

sarily limited by the restrictions imposed by that statute

and the administrative rules properly adopted under its

authority. '%

Petitioners’ arguments amount to no more than a

claim that the Hawaii Supreme Court misinterpreted a

provision of the HHCA, a claim not within the scope of

Petitioners’ “Question Presented for Review,” Pet., at 2,

and a matter fulfilling none of the criteria which guide

this Court in selecting cases for review.'4 Petitioners

admit as much by attempting to reargue, as a matter of

policy, the merits of the Hawaii Supreme Court's inter-

pretation of the HHCA.' Accordingly, the Petition for

Writ of Certiorari must be denied.

13 The Bush II court found that when “compared with

ordinary leaseholders, Hawaiian homestead lessees do not

possess all of the ‘sticks in the bundle of rights commonly

characterized as property[.]’ (citation omitted)”. Bush II, 81

Haw. at 484, 918 P.2d at 1140.

The Bush II court’s interpretation of § 208(5) of the HHCA

and its application to the specific facts of this case is entirely

consistent with other cases involving government restrictions

on the use and disposition of federal Indian trust lands. See, e.g.,

Ewert v. Bluejacket, 259 U.S. 129 (1922) (restrictions placed on

alienation of lands held by individual Indians are designed to

protect the Indians as wards from improvident disposition of

their lands, and to protect them from abuses of federal officials).

14 See Rule 10, Rules of The Supreme Court of the United

States (Considerations Governing Review on Certiorari).

15 For example, Petitioner states at page 14 of the Petition

that the “public policy precludes treatments of licenses as

interests in land”. Similarly, at page 18 Petitioner argues that the

Hawaii Supreme Court’s holding “cannot be consistent with

12

Ill.

PETITIONERS ALLEGATIONS OF A REGULATORY

TAKING LACK ANY SUPPORT IN THE RECORD

Not satisfied with their wholly unsupported claim of

a “judicial taking”, Petitioners next attempt to mischarac-

terize the facts of this case as a “regulatory taking”. Pet.,

at 21-23. As this Court, however, has correctly noted, a

regulatory taking will only occur if the property owner is

deprived of “all economically beneficial or productive

use” of his or her property. Lucas v. South Carolina Coastal

Council, 505 U.S. 1003, 1015 (1992). Again, Petitioners

have failed to point to any reference in the record below

that shows that the Bush I] opinion prohibits a lessee from

entering into other arrangements for the occupation, cul-

tivation and use of their agricultural homestead leases.'®

IV.

PETITIONERS CANNOT SUPPORT THEIR CLAIMS OF

INJURY TO “INVESTMENTBACKED” EXPECTATIONS

Petitioners misrepresent the facts of this case when

they claim that they “accepted [the Department of Hawai-

ian Home Lands’] invitation to sign approved TPAs” and

therefore “invested, through actions and/or forbearance,

time and money into the relationships in reliance on the

legal validation of the TPAs by [State Respondents].” Pet.,

HHCA’s goals of rehabilitation and ‘betterment’ of native

Hawaiians through self-determination”.

16 For instance, Bush II] does not prohibit Petitioners from

farming the land themselves or under a “legitimate employment

contract” with others, including native Hawaiians. Id., 81 Haw.

at 487, 918 P.2d at 1143; see also § 2U8(5), H.H.C.A.

13

at 25. In fact, as the court found in Bush I, Petitioners

entered into these TPAs without approval by State Respon-

dents and thus were in clear violation of the Commis-

sion’s administrative rules. Bush I, 76 Haw. at 132, 870

P.2d at 1281. State Respondents’ attempt to approve the

TPAs was a mere attempt to give after-the-fact protection

to preexisting transactions and was by no means an “invi-

tation” inducing Petitioners to take action [i.e., initiate

TPAs] they would not otherwise have undertaken.

Indeed, the absence of any reliance by Petitioners on the

supposed “legal validation of the TPAs by the DHHL/

HHC” is clearly demonstrated by the fact that the TPAs

contained language expressly agreeing to indemnify the

State Respondents from any expenses resulting from their

approval of the TPAs.!7 In any event, those who, like

Petitioners, transact business with a trustee are bound by

the limits of the trustee’s authority to bind the trust, and

any transaction violative of the terms of the trust is void

ab initio and does not create liability on behalf of the trust

in favor of Petitioners.'®

17 As the Bush II court correctly found, the TPAs expressly

provided that Petitioner and Respondent Larry Jefts et al. would

indemnify the Department against “all losses, damages, costs,

expenses .. . on account of any demand, claim or suit for any

loss of damage to property, property right or injury or death to

any person arising out of, caused by or in any way connected

with the implementation, use, or reliance upon this Third Party

Agreement”. Bush II, 81 Haw. at 482, 918 P.2d at 1138.

18 See, e.g., United States v. Algoma Lumber Co., 305 U.S. 415,

422 (1939) (United States not liable to third party when it

contracts on behalf of Indian tribes); Sangre de Cristo

Development Co. v. United States, 932 F.2d 891, 895 (10th Cir.

1991), cert. denied, 503 U.S. 1004 (1992).

14

Vv.

CONCLUSION

Accordingly, for all the foregoing reasons, Peti-

tioners’ request for a Writ of Certiorari should be denied.

Respectfully submitted,

ALAN T. MuRAKAMI*

Paut F. NaHoa Lucas

Cart C. CHRISTENSEN

*Counsel of Record

Native Hawaiian Legal Corporation

Suite 1205, 1164 Bishop Street

Honolulu, Hawaii 96813

Telephone: (808) 521-2302

Attorneys for Respondents

la

APPENDIX “A”

RULE 40, HAWAII RULES OF

APPELLATE PROCEDURE (HRAP)

Rule 40, Motion for Reconsideration

(a) Time. A motion for reconsideration may be filed

by a party only within 10 days after the filing of the

opinion or ruling unless by special leave additional time

is granted during such period by a judge or justice of the

appellate court involved.

(b) Contents. The motion shall state with partic-

ularity the points of law or fact which the moving party

contends the court has overlooked or misapprehended,

together with a brief argument on the points raised. The

motion shall also be supported by a certificate of counsel

to the effect that it is presented in good faith and not for

purposes of delay.

(c) Answer; Reply; Argument. No answer to a

motion for reconsideration or reply to an answer will be

received unless requested by the court. There shall be no

orai argument on a motion for reconsideration unless

ordered by the court on its own motion.

(d) Disposition of Motion. The court within 10

days of the filing of a motion for reconsideration, shall

either grant or deny such motion. The failure of the court

to act within the 10 days shall constitute a rejection. If a

motion for reconsideration is granted, the court may

modify the decision without new argument, order new

argument, or take such action as may be appropriate.

iP i i, iets ata ge am capa enrol

2a

(e) Only One Motion Permitted. Only one motion

for reconsideration may be filed by any one party, even if

the court modifies its decision or changes the language in

the opinion rendered by the court.