Petition for Writ of Certiorari — Paty v. Price

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EIR ED

% ] - 12 7 3 Suptetta Court, U.S.

7 Walt 2 8 1992

OFFICE OF THE CLERK

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1991

DocTor Nu! LOA PRICE, et al.,

Petitioners,

STATE OF HAWAIIL., et al.,

Respondents.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

W ALTER R. SCHOETTLE

Attorney at law

Counsel of Record for Petiiioners

Doctor Nui Loa Price and The Hou

K AMUELA PRICE, pro se

Suite 1012

1088 Bishop Street

P.O. Box 5%

Honolulu, Hawaii 96809

Telephone: (808) 537-3514

QUESTIONS PRESENTED

. Whether the State of Hawaii and its officers are

aiaha to Eleventh Amendment immunity from suit by

native Hawaiians to enforce the trust established by

Section 5(f) of the Hawaii Admissions Act?

2. Whether private parties, in possession of prop-

erty allegedly oe to the trust established by Sec-

tion 5(f) of the I lawaii Admissions Act. are engaged in

State action, subjecting them to suit under 42 .5.c.. 8

1983?

TABLE OF CONTENTS

OPINIONS IN THE CASE

JURISDICTION .................. 2

STATUTES INVOLVED ............._. 3

STATEMENT OF THE CASE.............__.

LEGISLATIVE HISTORY. ..

HISTORY OF LITIGATION. .............. 4

REASONS WHY THE WRIT SHOU] D ISSUE ... 20

CONCLUSION

ORDER GRANTING STATE DEFENDANTS’

MOTION TO DISMISS AND PRIVATE

DEFENDANTS’ MOTION TO DISMISS

COMPLAINT AND ACTION

ORDER DENYING REHEARING .

ORDER DENYING REHEARING |

JUDGMENT

TABLE OF AUTHORITIES

Cases Cited

Addickes v. §. H. Kress & Co., 398 U.S. 144, 90

S.Ct. 1598, 26 L.Ed.2d 787 (1970)

Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57

L.Ed.2d 1114 (1978)

Burton v. Wilmington Parking Authority, 365

U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961)

Dennis v. Sparks, 449 U.S. 24, 101 S.Ct. 183, 66

L.Ed.2d 185 (1980)

Edelman v. Jordan, 414 U.S. 651, 94 S.Ct. 1347,

39 L.Ed.2d 662 (1974)

Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52

L.Ed. 714 (1908)

Green v. Mansour, 474 U.S. 64, 106 S.Ct. 423,

88 L.Ed.2d 371 (1985)

Hans v. Louisiana, 134 US. 1, 10 S.Ct. 504, 33

L.Ed. 842 (1890)

Lugar v. Edmondson Oil Co., 457 U.S. 922, 102

S.Ct. 2744, 73 L.Ed.2d 482 (1982)

Missouri v. Jenkins, __ U.S. __, 110 S.Ct.

1651, 109 L.Ed.2d 31, 50-51 (1990)

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

cert.denied sub nom. Paty v. Napeahi, 112

S.Ct. 278 (1991)

Papasan v. Allain, 478 U.S. 265, 106 S.Ct. 2932,

92 L.Ed.2d 209 (1986)

Price v. Akaka, 928 F.2d 824 (9th Cir. 1990),

cert.denied sub nom. Akaka v. Price, (U.S.

No. 90-1941)

Price v. Dept. of Justice, CV. NO. 80-2794

(D.D.C.).

™N

Ay he d/

Table of Authorities

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

cert. den. sub nom. The Hou H 1WALLANS V.

Hawaii, 475 U.S. 1091 (1986) 17, 21

Price v. State of Hawaii, 921 F.2d. 950 (9th Cir.

1990) 19

Price v. Hawaii, 939 F.2d 702 (9th Cir. 1991) 2,29

Ulaleo v. Paty, 902 F.2d 1395 (9th Cir. 1990) 19

U.S. v. Price, 383 U.S. 787, 86 S.Ct. 1152. 16

L.Ed.2d 267 (1966), 8

Welch v. Dept. of Highways and Public

Transportation, 483 U.S. 468, 107 S.Ct.

2941, 97 L.Ed.2d 389 (1987) 7

Statutes Cited

28 U.S.C. § 1254(1) 2

28 U.S.C. § 1343 4

28 U.S.C § 1362 18

28 U.S.C. § 2101(c) 2

42 U.S.C.S. § 1983 passim

Joint Resolution of Annexation, Res. No. 55, 30

Stat. 750 9,10

Section 91 of the Hawaiian Organic Act, April

30, 1900, ch. 339, 31 Stat. 141 10,11

Hawaiian Homes Commission Act of 1920

(“HHCA”), July 21, 1921, ch. 42, 42 Stat. 108

Hawai Admissions Act, Pub.L. 86-3, 73 Stat. 4

(1959) passim

Contitutional provisions

Eleventh Amendment passim

Court Rules

Rev. Rules of the Supreme Court, Rule 10.1( ) 22

Rev. Rules of the Supreme Court, Rule 13.4 2

1V Table of Authorities

Rev. Rules of the Supreme Court, Rule 29.2. 3

F.R.Civ.P., Rule 12(b)(6) 7

Congressional Materials

59 Cong.Rec. 7453 (1920) 12

H.R. Rep. No. 839, 66th Cong., 2nd Sess. 5 (1920) 13,14

Proposed Amendments to the Organic Act of the

Territory of Hawaii, Hearings before the

House Committee on Territories, 66th

Cong., 2nd Sess. 170 (Feb. 3, 4, 5, 7 and 10,

1920) 11

Proposed Amendments to the Organic Act of the

Territory of Hawait, Hearings on H.R.

7257 be fore the House Committee on

Territories, 67th Cong., 1st Sess. 141 (June

9 and 10, 1921 12

Miscellaneous

Report to United States Secretary of the Interior

and the Governor of the State of Hawaii,

Federal-State Task Force onthe Hawaiian

Homes Commission Act (August, 1983) 16

Faludi, Susan C., “Broken Promise: How

Evervone Got Hawaiians’ Homelands

Except Hawaiians”, The Wall Street

Journal, September 9, 1991

A Broken Trust, The Hawatian Homelands

Program: Seventy Y ears of Failure of the

Federal and State Governments to Protect

the Civil Rights of Native Hawaiians,

Hawai Advisory Committee to the U.S.

Commission on Civil Rights, December 12,

1991 25-28

IN THE

Supreme Court of the United States

OCTOBER TERM, 199]

Doctor Nui Loa Prie E, THE Hou

HAWAIIANS! AND KAMUFI A PRICE.

Petitioners,

Vv.

STATE OF HAWAII, WILLIAM W. Paty, individually

and as Chairman of the board of Land and Natural

Resources of the State of Hawaii, HERBERT K. APAK A,

JR., Moses W. KEALOHA, J. DOUGLAS ING, JOHN

ARISUMI, and HERBERT ARATA, individually and as

members of the Board of Land and Natural Resources

of the State of Hawaii, JOHN WAIHEE, individually and

as Governor of the State of Hawai, THE HONOLU!

SAILORS HOME SOCIETY *. a Hawaii non profit

corporation, HFSL Corp.. a Hawaii corporation,

d.b.a. HARBOR ASSOCIATES. PETER S. SMITH d.b.a.

SMITH DEVELOPMENT Corp... GLENN K. OKADA,

d.b.a. G.K.O. Corp.. and Hi INFED BANK, a federal]

Savings bank,

> }

Respondents.

PETITION FOR WRIT OF CERTIORARI

To the Honorable Chief Justice and Associate

Justices of the Supreme Court of the United States:

Your Petitioners Dox TOR Nut LOA PRICE. Tr;

\ \

S| hog

2 PRICE v. STATE OF HAWAII

Hou HAWAIIANS and KAMUELA PRICE, respectfully

pray that a Writ of Certiorari issue to review the de-

cision of the United States Court of Appeals for the

Ninth Circuit in this case.

OPINIONS IN THE CASE

The opinion of the U.S.’Court of Appeals for the

Ninth Circuit sought to be reviewed, Price v. State of

Hawai, C.A. Nos. 90-15117 and 90-15863, was filed

July 11, 1991. Petitioners and State Respondents filed

timely motions for rehearing. On August 8, 1991, the

opinion was amended on denial of Petitioner’s motion

for rehearing, App., p. 35; and the opinion, as amen-

ded, was published in full as Price v. Hawaii, 939 F.2d

702 (9th Cir. 1991). App., p. 1. The opinion was again

amended by order filed on September 18, 1991. App., p.

16.

JURISDICTION

The decision of the Court of Appeals was announced

in the opinion, filed July 11, 1991, App., p. 1, and judg-

ment was entered. App., p.37.On July 21, 1991, Respon-

dents, WILLIAM PATY, et al., filed a timely motion for

rehearing. Respondents’ motion for rehearing was denied

by order filed October 30, 1991. App., p. 36. This Court

has jurisdiction to review the decision of the Court of

Appeals pursuant to 28 U.S.C. § 1254(1), provided the

petition is filed within 90 days of entry of the judgment

of the Court of Appeals, as required by 28 U.S.C. §

2101(c).

The 90 day time period is tolled by the filing of the

timely motion for rehearing. Revised Rules of the Su-

preme Court, Rule 13.4; Missouri v. Jenkins, __ US.

__, 110 $.Ct. 1651, 109 L.Ed.2d 31, 50-51 (1990). The

Petition for Writ of ¢ ertiorari 3

petition is deemed filed if mailed bearing a postmark

dated on or before January 28, 1992, the last day for

filing. Revised Rules of the Supreme Court, Rule 29.2.

STATUTES INVOLVED

The Eleventh Amendment provides:

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 Uni-

ted States by Citizens of another State. or by Citi-

zens or Subjects of any Foreign State.

42 U.S.C.S. § 1983 provides:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected. any citizen of

the United States or other person within the juris-

diction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitu-

tion and laws, shall be liable to the party injured

In an action at law, suit in equity, or other proper

proceeding for redress. For the purposes of this

section, any Act of Congress applicable exclusively

to the District of Columbia shall be considered to

be a statute of the District of Columbia.

Pub.L. 86-3, 73 Stat. 4 (1959), § 5(f) provides:

The lands granted to the State of Hawaii by sub-

section (b) of this section and the public lands

retained by the United States under subsection (c)

and (d) and later conveyed to the State under sub-

section (e), together with the proceeds from the

sale or other disposition of any such lands and the

Q PRICE v. STATE OF HAWAII

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 onas widespread a basis

as possible for the making of public improve-

ments, 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 consti-

tution 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. The schools and other educational

institutions supported, in whole or in part out of

such public trust shall forever remain under the

exclusive control of said State; and no part of the

proceeds or income from the lands granted under

this Act shall be used for the support of any

sectarian or denominational school, college, or

university.

STATEMENT OF THE CASE

This is a civil rights case brought in the U.S.

District Court for the District of Hawaii, pursuant to

42 U.S.C. § 1983. App., p. 18. The District Court has

jurisdiction as conferred by 28 U.S.C. § 1343. Petition-

er THE Hou HAWAIIANS is a native Hawaiian?

¥] . e. . ° .

“ Whenever the term “native Hawaiian” is used herein it means

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

races inhabiting the Hawaiian Islands previous to 1778” as that term is

Petition for Writ of Certiorari 5

ohana or tribal body. Maui Loa, hereditary chief of

the ohana, is a native Hawaiian, qualified and on the

waiting list for an award of a homestead lease, pursu-

ant to the Hawaiian Homes Commission Act of 1920

(““HHCA”), July 21, 1921, ch. 42, 42 Stat. 108 et seq.

Petitioner KAMUELA PRICE, father of MAut Loa

and member of the elder council of THE Hou Hawal.

IANS, 1s not a native Hawaiian. He appears here as a

representative and advisor to the native Hawaiian

members of the obana and on their behalf.

The federal right which Petitioners claim has been

denied them by Respondents, acting under color of state

law, is their right as native Hawaiian special benefici-

aries under the trust established by Congress in § 5(f)

of the Hawaii Admissions Act, Pub.L. 86-3, 73 Stat. 4

(1959) (hereafter “Admissions Act”). App., pp. 18-19.

Respondents PAtTy, APAKA, KEALOHA, _ ING,

ARISUMI, and ARATA, are the chairman and members

of the Board of Land and Natural Resources of the

State of Hawa, generally charged with the duty under

state law of managing the § 5(f) trust corpus. App., p.

19. These respondents are collectively called “state

respondents.”

Respondent HONOLULU SAILORS’ HOME SOCIETY

(“HSHS”) is in constructive possession of the subject

property as lessor under a master development lease

to Harbor Properties, Ltd, as general partner of Pu-

get-Pacific, a limited partnership. Respondents HFSL

CorP., SMITH, and OKADA, are the successors of the

lessee under the master lease. Respondent HONFED

BANK, is a mortgagee.

defined by Section 201(a)(7) of the Hawaiian Homes Commission Act

of 1920.

6 PRICE v. STATE OF HAWAII

The complaint alleges:

1. That on March 21, 1893, the provisional Govern-

ment of the Hawaiian Islands executed and delivered a

deed for a certain parcel of land to respondent HSHS

for use as a sailors’ home upon the condition that “if

the herein described lot or any part thereof shall at any

time cease to be used for the purposes of a Sailors’

Home, the whole of said lot shall forthwith revert to

the Government of the Hawaiian Islands.” App. p. 19.

2. That said condition has been violated and the lard

reverted to the State of Hawaii as trustee of the § 5(f)

trust as successor to the interest of the government of

the Hawaiian Islands. App. p. 20.

3. That the private respondents have wrongfully

been receiving rents and profits from the subject prop-

erty which monies rightfully belong to the corpus of the

§ 5(f) trust. App., p. 20.

4. That the state respondents have breached their

duty to recover the lost rents and profits and posses-

sion of the subject property on behalf of the trust.

App., p. 20.

The complaint seeks an adjudication that the subject

property is part of the corpus of the § 5(f) trust and

judgment against the private parties and state officials,

in their individual capacities, for damages to the trust

for lost rents and profits. The complaint also seeks

appointment of Petitioner, MAUI LOA, or some other

suitable person as co-trustee with respect to the recov-

ered property. App., pp. 20-21.

Claims against State of Hawati and State Of ficials

in their Of ficial Capacities.

Respondents State and state officials moved to dis-

miss the complaint or in the alternative for summary

judgment. Their arguments that Petitioners lack stand-

Petition for Writ of Certiorari 7

ing and that § 5(f) does not create a federal right en-

forceable by 42 U.S.C. § 1983 were rejected by the

district court. App., p. 28. However, the district court

dismissed the complaint against the State and state of-

ficials on eleventh amendment grounds, App., pp. 22-

28, 34, pursuant to F.R.Civ.P., Rule 12(b)(6). App., p.

28. The district court ruled that suit was precluded

against the state directly and against the state officials

in their official capacities, because an adjudication of

title to state land was in actuality a suit against the

state itself. Further that such an adjudication was

merely to establish the basis for a money judgment,

citing Green v. Mansour, 474 U.S. 64, 106 S.Ct. 423,

88 L.Ed.2d 371 (1985) and Papasan v. Allain, 478 U.S.

265, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986). App., pp.

24-26.

Petitioners conceded below that Hans v. Louisiana,

134 US. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890), Edelman

v. Jordan, 414 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662

(1974), and Alabama v. Pugh, 438 U.S. 781, 98 S.Ct.

3057, 57 L.Ed.2d 1114 (1978), compelled dismissal of

the complaint against the state of Hawaii. However,

Petitioners noted that four members of this court had

stated in Welch v. Dept. of Highways and Public

Transportation, 483 U.S. 468, 107 S.Ct. 2941, 97

L.Ed.2d 389 (1987), that Hans v. Louisiana was

wrongly decided. Therefore, Petitioners preserved

this issue to be decided by this court.

Petitioners also argued that this suit alleges a

breach of a trust that was established by the very act

of congress that conferred sovereignty upon the state.

The § 5(f) was a condition of statehood, which had to be

approved by the voters of the Territory.

Petitioners also argued that the prayer for adjudi-

8 PRICE v. STATE OF HAWAITI

cation of title was inthe nature of prospective relief

against the state permitted by Ex parte Young, 209

U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908).

The ruling with respect to petitioners’ claim for

damages against the state officials in their individual

capacities was reversed by the Court of Appeals. App.,

pp. 7-8. However, the Court of Appeals affirmed dis-

missal of claims against the state and state officials

acting in their official capacities. App., pp. 6-7.

Claims against private parties.

The private respondents joined in the state’ motions

but also moved to dismiss on the additional grounds

that they, as private parties, were not acting under

color of state law. App., p. 28.

Petitioners, citing U.S. v. Price, 383 U.S. 787, 86

S.Ct. 1152, 16 L.Ed.2d 267 (1966), Addickes v. S. H.

Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d

787 (1970), Dennis v. Sparks, 449 U.S. 24, 101 S.Ct.

183, 66 L.Ed.2d 185 (1980) and Lugar v. Edmondson

Oil Co., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482

(1982), argued that the private parties were acting

jointly with the state officials and were therefore

engaged in state action.

The district court ruled that “Plaintiffs have clearly

failed to plead facts that would assert a § 1983 claim

against the private defendants.” App., p. 29. In addi-

tion, the district court engaged in a long discussion of

pendent party jurisdiction and concluded that the court

lacked jurisdiction absent a valid § 1983 claim. Peti-

tioners did not then and do not now assert any claim

against the private parties under state law.

On appeal, Petitioner Kamuela Price additionally

cited Burton v. Wilmington Parking Authority, 365

J cabs 715, 81 S.Ct. 856, 6 | .Ed.2d 45 (1961). The court

tT) x

’ tat: > \ -* ’ =

retition for WV rit of ¢ ertl rari 7]

of appeals affirmed, holding that no “connection

between the State and private appellees is pled here.”

App. p. 12.

LEGISLATIVE HISTOR Y

On July 7, 1898, Hawaii was annexed as part of the

United States of America, by Joint Resolution of An-

nexation, Res. No. 55, 30 Stat. 750. The Republic of

Hawai ceded title to approximately 1.7 million acres

of public lands to the United States. The relevant por

tion of the Resolution states:

“Whereas the Government of the Republic of

Hawai having, in due form, signified its consent.

in the manner provided by its constitution, to cede

absolutely and without reserve to the United States

of America all rights of sovereignty of whatsoever

kind in and over the Hawaiian Islands and their

dependencies, and also to cede and transfer to the

United States the absolute fee and ownership of all

public, Government, or Crown lands, public build.

ings or edifices, ports, harbors, military equip-

ment, and all other public property of every kind

and description belonging to the Government of the

Hawanan Islands, together with every right and

appurtenance thereunto appertaining:

Therefore,

“Resolved by the Senate and House of Repre-

r ’ : .

sentatives of the United States of America 172

Congress assembled, That said cession is accepted,

ratified, and confirmed, and that the said Hawaiian

Islands and their dependencies be, and they are

hereby, annexed as a part of the territory of the

United States and are subject to the sovereign

dominion thereof, and that al] and singular the

10 PRICE v. STATE OF HAWAII

property and rights hereinbefore mentioned are

vested in the United States of America.”

After accepting sovereignty over the territory of the

Hawaiian Islands and title to the public lands, in fee

simple absolute, without restriction or reservation,

Congress added a provision exempting Hawaiian lands

from the general law of the United States with respect

to public lands, as follows:

arr

[he existing laws of the United States relative

to public lands shall not apply to such lands in the

Hawaiian Islands; but the Congress of the United

States shall enact special laws for their manage-

ment and disposition: Provided, That all revenue

from or proceeds of the same except as 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 educa-

tional and other public purposes.”

In compliance with this provision, Congress provi-

ded that the Territorial government should control and

manage Hawauian public lands, rather than the Depart-

ment of the Interior, as had been the case in the other

49 states. Section 91 of the Hawaiian Organic Act,

April 30, 1900, ch. 339, 31 Stat. 141, provides as

follows:

“Sec. 91. That the public property ceded and

transferred to the United States by the Republic of

Hawaii under the joint resolution of annexation,

approved July seventh, eighteen hundred and nine-

ty-eight, shall be and remain in the possession, use

Petition for Writ of ¢ ertiorari 1]

and control of the government of the Territory of

Hawaii, and shall be maintained, managed, and

cared for by it, at its own expense, until otherwise

provided for by Congress, or taken for the uses

and purposes of the United States by direction of

the President or of the governor of Hawaii. And

all moneys in the Hawaiian treasury, and all the

revenues and other property acquired by the Re-

public of Hawaii since said cession shall be and

remain the property of the Territory of Hawaii.”

While § 91 of the Hawaiian Organic Act was amen

ded from time to time, the foregoing language remained

part of the law until statehood in 1959.

But Congress was not indifferent to the injustice

that had been done to the native Hawalian peoples, who

had been displaced from their land by powerful eco-

nomic interests that they could not resist. The

Hawaiian Homes Commission Actof 1920 was enacted

to remedy this injustice.

Congress was animated by a purpose to restore

some of Hawaii’s land to the native Hawaiian people,

“because,” as the Committee chairman declared, “the

Hawatians were deprived of their lands without any

Say on their part, either under the Kingdom, under the

republic or under the United States government.” Pro-

posed Amendments to the Organic Act of the Terri-

tory of Hawaii, Hearings before the House Commit-

tee on Territories, 66th Cong., 2nd Sess. 170 (Feb. 3.

4, 5,7 and 10, 1920). The Committee report reiterated

that the native Hawaiian population “assumed that the .

[land]... was being held in trust by the crown for

their benefit,” and recognized that the land indeed

never had been transferred and that the rebel] Republic

12 PRICE v. STATE OF HAWAII

of Hawaii had “arbitrarily seized” the lands. H.R.

Rep. No. 839, 66th Cong., 2nd Sess. 5 (1920). In floor

debates, Del. Jonah Kuhio Kalanianaole argued for the

legal and moral rights of the native Hawaiian people to

have land set aside for their benefit. 59 Cong.Rec. 7453

(1920).

The bill that finally became the Act was introduced

in the next Congress. In a second set of hearings, the

chairman of the Committee on Territories noted that

the motivating factor behind the legislation was similar

to that behind similar legislation relating to Indian

tribes: “because we came to this country and took

their land away from them... . [WJhy can we not do

the same thing for the Hawaiians whose land was

taken away from them... .” Proposed Amendments to

the Organic Act of the Territory of Hawaii,

Hearings on H.R. 7257 before the House Committee

on Territories, 67th Cong., 1st Sess. 141 (June 9 and

10, 1921.

The Act set aside approximately 200,000 acres of

land, designated as “available lands”. id., § 203, for

homesteads to be leased to native Hawaiians at a ren-

tal of one dollar a year for 99 years. /d., §§ 207-208. A

“native Hawaiian” was defined as follows:

Sec. 201. (a) That when used in this title --

+ + +

(7) The term “native Hawaiian” means any de-

scendant of not less than one-half part of the blood

of the races inhabiting the Hawaiian Islands previ-

ous to 1778;” Id., § 20

Unfortunately, over the years, the Hawaiian Home-

stead program was not as successful as might have

been imagined. To further address the problem, at the

Petition fo; Writ of Certiorari 13

time of Statehood, Congress imposed certain trust pro

visions upon the Hawaiian public lands.

On March 18, 1959. san enacted the Hawaii

Admissions Act, approving § statehood for Hawaii.

Section 5(a) of the Act granted the proposed state

government all of the land. legal title to which was

held in the name of the Territory. With certain

exceptions as set forth in Sections 5(c) and s(d),

sections 5(b) and \(g) granted the proposed state all of

he lands which had been ceded to the U nited States at

the time of annexation, including the ‘ ‘available lands

under the Hawaiian Homestead program. This grant

was subject to the trust imposed by Section 5(f) of the

Act, in part, “for the betterment of the condition; of

native Hawaiians, as defined in the Haw aiian Homes

peer gs Act, 1920, as amended.” This comprised

a total of ; pproximately 1.4 million of the original 1,7

million ae

Che 300,000 acres reserved to the United States by

Sections 5(c) and (d ) included the milit ary reservations.

government installations, and other property in actual

use by the United States. Most of this acreage 1s com-

prised of Hawaii National Park on the Islands of

Hawaii and Maui. See Hawaii Admissions Act, § 16.

Chis grant was a rather extr aordinary concession to

the proposed new state. No other had been treated so

generously upon admission to the Union. Indeed. the

Secretary of the Interior so noted in his comments to

the proposed Statehood bill.

“In line with the preceding comments, I recom.

mend the inclusion in H.R. 49 of provisions which

would permit Hawaii to enter into the Union on a

basis similar to that on which the western conti

nental States were admitted. The Federal Govern

14 PRICE v. STATE OF HAWAII

ment has retained the public lands for development

and disposal in a manner consistent with the inter-

ests of the nation as a whole. At the same time it

has granted to the incoming States from two to

four sections per township of public lands, or from

one-eighteenth to one-ninth of the public lands, for

school purposes, in addition to other grants for in

ternal improvements. Similar grants should be

made in the case of Hawaii.” H. Rep. No. 194,

80th Cong., 1st Sess. 16 (1947)

The only consideration exacted from the proposed

state for this special treatment was the promise to use

the land so granted for the “betterment of the condi

tions of the native Hawalians.”

Under Section 4, of the Admissions Act, Congress

required that:

"As a compact with the United States relating

to the management and disposition of the Hawaiian

home lands, the Hawaiian Homes Commission

Act, 1920, as amended, shall be adopted as a pro

vision of the Constitution of said State, as provided

in section 7, subsection (b) of this Act, subject to

amendment or repeal only with the consent of the

United States, and in no other manner: Provided.

That ... all proceeds and income from the “avail

able lands”, as defined by said Act, shall be used

only in carrying out the provisions of said Act.”

The Act provided for ratification of statehood by the

voters of the proposed state, as follows:

“(b) At an election designated by proclamation

of the Governor of Hawaii, which may be either

the primary or the general election held pursuant

Petition for Writ of Certiorarj 15

to subsection (a) of this section, or a territoria]

general election. or 4 special election, there shal]

be submitted to the electors qualified to vote in

said election, for adoption or rejection, the follow

Ing propositions:

+ +

~ (3) All provisions of the Act of Congress ip

proved ___—s (Date of approval of this act) re

serving rights or powers to the United States. gs

well as those prescribing the terms or conditions

of the grants of lands or other property therein

made to the State of Hawaii are consented to

fully by said State and its people.’

“In the event the foregoing propositions are

adopted at said election by a majority of the legal

votes cast on said submission, the proposed consti-

tution of the proposed State of Hawaii, ratified by

the people at the election held on November 7

1950, shall be deemed amended as follows: * * *

article XI shall be deemed to include the provi

sions of section 4 of this Act; and section 8 of

article XIV shall be deemed amended so as to con

tain the language of the third proposition above

stated in lieu of any other language * * *

“In the event the foregoing propositions are not

adopted at said election by a majority of the legal

votes cast on said submission, the provisions of

this Act shall cease to be eliective

+ %

"he election was held on June 27, 1959 and state

hood and the above proposition were ratified by the

voters. 73 Stat. c74. On August 21. 1959, President

Eisenhower signed the proclamation admitting Hawaii

16 PRICE v. STATE OF HAWAII

into the Union as the 50th state. Jd.

HISTORY OF LITIGATION

In 1980, Petitioners filed suit against the U.S. De

partment of Justice to compel the United States to per

form its obligation under § 5(f) to enforce the trust.

Price v. Dept. of Justice, CV. NO. 80-2794 (D.D.C.).

This case was settled by an agreement of the parties

which established the Federal-State Task force on the

Hawaiian Homes Commission Act. See Report to

United States Secretary of the Interior and_ the

Governor of the State of Hawati, Federal-State Task

Force onthe Hawaiian Homes Commission Act (August,

1983), p. 7. Petitioner, KAMUELA PRICE was appointed

by Gov. Ariyoshi as one of the members of the Task

Force. On August 15, 1983, the Task Force issued its

report, finding,

in part:

“[A]s of May 31, 1983, 7,901 applicants continue

to wait for homestead awards. In addition the

State has not identified with precision the Hawai

1an Home lands that constitute the assets of the

trust; it has not at all times accounted accurately

tor revenues associated with trust lands: it has not

maintained auditable financial records and state

ments; and, it has entered into conveyances and

encumbrances of Hawaiian Home lands that have

not been authorized by law.” /d., at p. 22.

The Task Force also found that the state legislature

had improperly reduced the blood quantum of aboriginal

blood required for successorship to a homestead lease

from 50% to 25% and made other unauthorized amend

ments to HHCA. /7d., at 25. The Task Force recom

mended that Congressional approval be obtained for

Petition for Writ of Certiorari 17

these changes. Jd. at 27. Petitioner KAMUELA PRIC}

Awd

dissented from this recommendation, as follows:

“On behalf of the Hoy Hawaiians and other na

tive Hawaiian beneficiaries whom | represent, |

must dissent from any and all] recommendations

that the United States Congress be requested to

change or modify the HHCA at this time.

“Congressional action on amendments to the

HHCA or new Federal legislation pertaining to

the HHCA should be deferred until all eligible

beneficiaries currently on DHHL waiting lists are

awarded leases to their homestead land. Once

these beneficiaries have their leases, the native

Hawaiian homesteaders and leaseholders should

vote on whether any new HHCA legislation or

amendment is desired. The results of this vote

should be presented to Congress with any pro

posed Federal legislation or amendment changing

the HHCA,

“I fear that at this time Congress might inad

vertently or otherwise abort the HHCA or change

it in a manner detrimental to the best interests of

the beneficiaries.” Id., at 69.

One excuse for the delay in awarding homesteads

under HHCA has been the lack of funding to provide

infrastructure. Petitioners have maintained that it was

Congress’ intention that income from the § 5(f) trust

should be used for this purpose.

Therefore, in Price v. Flawaii, 764 F.2d 623 (9th

Cir. 1985), cert. den. sub nom. The Hoy Hawaiians v.

Flawait, 475 U.S. 1091 (1986), Petitioners brought suit

against the State of Hawaii and then Gov. George Ari

yoshi, in his official and individual < apacities, seeking

18 PRICE v. STATE OF HAWAII

to compel use of a portion of the § 5(f) revenue to pro-

vide the needed infrastructure. Jurisdiction of the

federal district court was predicated on 28 U.S.C §

1362. The district court dismissed the action, and the

Court of Appeals affirmed, holding that § 1362 does not

confer jurisdiction, because the Hou are not an “Indian

tribe or band with a governing body duly recognized by

the Secretary of the Interior.”

Nevertheless, the court ruled that a native Hawai-

ian does have standing to bring suit against state of-

ficials for prospective injunctive relief and that such

officials are not protected from suit by the Eleventh

Amendment. Price v. State of Hawati, supra, 764

F.2d at 629-30. The Court suggested that Petitioners

could file suit pursuant to 42 U.S.C. § 1983. Jd., at

630.

In Price v. Akaka, 928 F.2d 824 (9th Cir. 1990),

cert.denied sub nom. Akaka v. Price, (U.S. No. 90-

1941) Petitioners sued the trustees of the Office of

Hawaiian Affairs, individually, for damages, pursuant

to § 1983, for allegedly using proceeds of the § 5(f)

trust to benefit all Hawaiians as distinguished from

native Hawaiians. The district court dismissed the

action. On appeal, the Court of Appeals reversed,

holding that state officers are not protected by the

Eleventh Amendment from suit against them individu-

ally for damages for breach of the § 5(f) trust. Price v.

Akaka, supra, 928 F.2d at 826-8. The Court of Appeals

made the additional important ruling that trust property

remained impressed with the trust restrictions as long

as it remains in the control of any agency or depart-

ment of the state. /d., at 827.

On remand, the defendants again moved to dismiss,

this time on grounds of qualified immunity. A ruling on

Petition for Writ of Certiorari 19

that motion is now pending in the district court.

Defendants have stated that they will file an inter-

locutory appeal from an adverse ruling on that motion.

In Price v. State of Hawaii (hereafter called Price

v. Paty), 921 F.2d. 950 (9th Cir. 1990), Petitioners

brought suit against the Chairman and members of the

Board of Land and Natural Resources of the State of

Hawaii for an accounting of assets and income from

the § 5(f) trust and also for injunctive relief to prevent

the them from depositing the trust income into the state

general fund. The district court granted summary judg-

ment against plaintiffs, and the Court of Appeals af-

firmed. The Court of Appeals held that defendants are

not accountable as ordinary trustees, because § 5(f)

does not require the high standard of fiduciary duty

often imposed by courts on trustees of native Amer-

icans. Price v. Paty, supra, 921 F.2d at 955. Never-

theless, the Court of Appeals again rejected the Elev-

enth Amendment immunity argument again advanced by

defendants. Jd. at p. 958.

In Ulaleo v. Paty, 902 F.2d 1395, another group of

native Hawaiians brought suit against the members of

the Board of Land and Natural Resources, in their of-

ficial capacities. The suit complained of an exchange of

27,807 acres of valuable § 5(f) trust land with excellent

potential for geothermal energy development by the

board for 25,807 acres of worthless Campbell Estate

land that had been covered by lava in recent volcanic

eruptions. The Campbell Estate was not made party to

the suit. The-Court of Appeals ruled that the suit was

in reality one for retroactive relief or damages that

was precluded by the Eleventh Amendment.

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

case very similar to the instant one. Another group of

20 PRICE v. STATE OF HAWAII

native Hawaiians brought suit against the chairman of

the Board of Land and Natural Resources, in his offi-

cial capacity, to compel him to adjust a shoreline

certification that had resulted in an addition of 1.75

acres of what plaintiffs alleged was § 5(f) trust land to

the Hyatt Waikoloa Beach Resort Hotel property. The

private land owners were not made parties.

After trial, the district court found that the land in

question was not § 5(f) trust property. The Court of

Appeals reversed and remanded for further findings by

the district court. However, since the private land

owners were not made parties, it is not clear to Peti-

tioners what relief might be awarded by the district

court upon a finding that the land is § 5(f) trust land. A

declaration to that effect would not be binding on the

land owners. Moreover, Mr. Paty could hardly be

ordered to adjust the shoreline boundary without due

process to the private land owners.

In Paty v. Napeahi, 112 S.Ct. 278 (1991), the state

officials unsuccessfully sought review of this decision,

arguing that native Hawaiians lack standing to bring

suit to enforce the § 5(f) trust.

REASONS WHY THE WRIT SHOULD ISSUE

If the writ is granted, Petitioners will argue that

the State of Hawaii and its officers are not entitled to

sovereign immunity as provided by the Eleventh Amend-

ment because sovereign immunity was only granted to

the state on the condition that it would assume its

responsibility as trustee for the native Hawaiians,

under § 5(f) of the Hawaii Admissions Act.

Further, the people of the state accepted the terms

and conditions of the trust imposed by § 5(f), by rati-

fying proposition 3 at the special statehood election. By

Petition for Writ of Certiorari 21

so doing they consented to suit by the native Hawaiian

beneficiaries of the trust.

The Admissions Act specifically provides that the

trust may be enforced by suit brought by the United

States. Since the United States has not retained similar

enforcement rights over the school land grants to other

states, the purpose for this enforcement provision was

only to protect the rights of the native Hawaiians as

special beneficiaries under the trust. Because the

United States has not seen fit to exercise this power,

the native Hawaiians ought to be allowed to do so

under the co-plaintiff doctrine rejected by the Court of

Appeals in Price v. State of Hawaii, supra, 764 F.2d

at 631.

If certiorari is granted Petitioners would argue that

the private defendants were clearly acting under color

of state law under the standard of Lugar v. Edmondson

Oil Co., Inc., supra, quoted below by the Court of

Appeals. App., p. 10-11. Petitioners’ deprivation was

caused by the exercise of a privilege created by the

State; to wit, the right to continue to wrongfully

receive the rents and profits from property belonging

to the § 5(f) trust. The private parties were state

actors because they obtained significant aid in their

conduct from the state officials. Indeed, they would not

have been able to continue in this wrongful conduct if

the state officials had performed their duty to eject

them from the property.

The Court of Appeals was clearly concerned about

the merits of Petitioners’ claim. This difficulty was

caused by consideration of evidence that the district

court did not rule on or even consider. The Court of

Appeals was distracted by the fact that the specific

transaction referred to in the complaint as revesting

Lz PRICE v. STATE OF HAWAII

title to the property in the State had been approved in

advance by a state court.

This fact has nothing to do with the issue of state

action or color of state law. If the facts alleged in the

complaint are assumed to be true, as they must be on a

motion to dismiss, the private parties are wrongfully

receiving rents and profits belonging to the trust. If

this wrongful conduct was approved and condoned by

the state court, then state action is all the more clearly

involved.

The fact that the judge who approved the transaction

was later appointed to the state Supreme Court, and

the deputy attorney general was later appointed to the

Circuit Court bench, both appointments occurring at a

time when the attorney for HSHS was president of the

state senate, might be a mere coincidence.

Nevertheless, given an opportunity to obtain

discovery, Petitioners are confident they can prove that

a reversion has occurred at some time in the past and

the property should rightfully belong to the § 5(f) trust

corpus. Given that, the private parties are engaged in

conduct under color of state law.

This Court should grant the writ, because the

questions presented for review raise very important

questions of federal law which have not been, but

should be, settled by this Court. Rev. Rules of Sup.

Ct., Rule 10.1(c). These questions seek to define the

extent to which native Hawaiians may bring suit in

federal court to enforce the trust established for their

benefit by § 5(f) of the Hawaii Admissions Act. The

first question involves the scope of that right as it

pertains to the State of Hawaii. The second question

involves the scope of that right with respect to private

individuals who may be in wrongful possession of trust

assets.

These questions have been the topic of considerable

public interest and debate, over the past several years.

Indeed, the issue was the topic of a ful] page article

titled “Broken Promise: How Everyone Got Hawai

ans’ Homelands Except Hawaiians”, by Susan C

Faludi, Staff Reporter, in the September 9, 1991 issue

of The Wall Street Journal. According to that article-

al te . h - t eS —_ ial — -

LO1uticlans have (CCl Celiiing native aWallans

—_

t Nang on for Y years, ever since ( ongress

1 | YY .* a; . . .

passed the Hawaiian momes Commission Act 1

1091 1. y > -~itr IN elela “rp ' ie

‘721, setting aside nearly 200,000 acres In scat-

tered tracts across the islands. Congress hoped to

save the dying Hawaiian people by returning a

small portion of land taken from them in what

even a U.S. president had called the unlawful

federal seizure of Hawaii in 1893.

“The federal act requires the state to lease

modest residential. farm and pastoral homestead

lots for $1 a year to anv Hawatian with at least

50% native ancestry. * * *

“But many decades later. more than ‘60% of the

land has been rented at bargain-basement prices to

10n-Natives--many of them belonging to the richest

and most powertul families in the 1slands--or

Swapped or simply given away to other govern-

ment agencies. [One area], for example, has been

leased for many years by Parker Ranch, the na

tions’ second-largest private ranching business.

The ranching corporation pays the state $3.3 an

+ . —

acre each year to use the property locking up

27,000 acres of homelands.

+ +

“Other land has gone to multinational] rpo

PRICE v. STATE OF HAWAII

rations for quarrying and mining operations, to the

U.S. military for the Pacific naval headquarters,

to state agencies for waste-water treatment plants

and airports and cemeteries, to mayors and legis-

lators for their own private companies and per-

sonal estates, to prominent businessmen for auto

dealerships and shopping strips and tourist attrac

tions, and to shrewd investors who have turned

around and subleased the property for as much as

eight times their rent.

“Native Hawaiians, who are the poorest and

most ill-housed population in the state, hold just

17.5% of the acreage. In the law’s entire history,

only 3,700 of the tens of thousands of families who

have been eligible have actually been allowed to

settle on the homelands. While about 5,800 fami-

lies have been awarded land, the state bars more

than a third of them from moving onto their land

because it lacks basic infrastructure--which the

state itself is supposed to build.

+ + +

“Hawaii has a strong economy and huge cash

reserves: State government boasted a $456.3

million surplus in fiscal 1991. But many of the

50,000 native Hawaiians currently eligible under

the 1921 act haven’t participated in the boom.

According to a 1990 stat-sponsored study of the

AIAN ANN

200,000 people who are any part . . . Hawaiian,

more than 2,000 of them live in cardboard boxes,

rusted cars or on the beaches--and 40% of the

homeless Hawaiians have been on the waiting list

for a homestead for more than seven years. As

the states housing crisis mounts, the number of

native Hawaiians on the waiting list has ballooned,

more than doubling In the past SIX years even

though officials have at times purged the list of

Say

inactive names.”

Ms. Faludi attributes the breach of trust by the

State to a lack of a right of the benef laries to sue to

enforce the trust:

“Little has been done about the violations. how

ever, in part because t ly

1e act itself authorize > onl

‘ ,

the federal government, not native Hawaiians, t

sue the state for breaking the homelands law. And

the federal government has never taken legal

: —

Perhaps as the result of Petitioners’ limited suc

~ ? | ' ,

cess in litigation with the_state respondents, they have

‘cently recognized an urgent need to provide native

Hawaiians with a right to sue to enforce the trust.

[heir solution to the problem, however, is not a right

to sue them, but a right to sue the federal] government.

In January, 1991, the state respondents released a

document entitled An Action Plan to Address Contro-

verstes Under the Hawaiian Home | ands Trust and

the Public Law Trust, Of fice of the Governor.

This plan was put in perspective on December 12.

1991, when the Hawaii Advisory Committee to the

U.S. Commission on Civil Rights issued its report

entitled “A Broken Trust, The Hawaiian Homelands

Program: Seventy Years of Failure of the Federal and

State Governments to Protect the Civil Rights of

Native Hawatians.”

On August 2, 1990, Governor Waihee provided that

Committee with his written Statement which is quoted

in the Report, as follows:

26 PRICE v. STATE OF HAWAI!

“The State holds that the Federal Government

shares with the State the role and burdens of trust

responsibilities to the Hawaiian Home Lands ben

eficiaries in fulfilling the purposes of the Act.

This is not a view that is held by the legal and

fiscal agents of the United States, who are even

now constructing arguments to the contrary. An

federal assistance for Hawaiian Home Lands has

occurred only with the persistence of Congress.

Nevertheless part of the State’s responsibility

1S to continue to press claims against federal

agencies for past inequities, and to lobby for

present and future resources.” /d.. at 11.

The Attorney General of the State has testified

that “Congress should allow claims to be heard in

federal court because of the trust breaches which

occurred during territorial days,” when the United

States administered the HHCA (An Action Plan

to Address Controversies Under the Hawaiian

Home Lands Trust and the Public Law Trust.

Of fice of the Governor, January 1991). 7d., p.

16, fn 42.

This effort on the part of the state respondents to

blame the federal government for their own wrong

doing, is made obvious by the Report. The complaints

by the state against the federal government are sum

marized as follows:

“There is no more compelling evidence of the

Federal Government’s callous disregard for the

rights of Native Hawaiians than the continuing

occupation by the United States of valuable home

lands, especially the use by the Navy of some

1,356 acres of land at Lualualei.” A Broken Trust.

“cy

n addition to Lualualei. the Federal Govern.

ment has breached its duty as 4 trustee by allow-

ing other lands in the homestead inventory to be

leased to the military and other Federal agencies.

or example, the U.S. Army is currently occupy-

ing 295 acres of trust land at Pohakuloa, Hawaii.

1 1 ° ¥

under a eeneral lease that was executed in 1964

po)

VY)

pa)

fF)

—

entire term. The U.S.

5 acres of trust land at Kekaha.

ail, aS a military storage area. also under a

ease lor 65 years at $1 for the entire term. The

Federal Aviation Administration utilizes 54 acres

of trust land at Keaukaha. Hilo, Hawaii. for 4

radar and communications facility set aside by

executive order Ss ol the Governor ol the lerritory

tf Hawai in 1948 that have previously been

| eed | J )

qgeciared illegal. ld.. at 18 19.

—

Having received 1.4 million acres of land from the

leral government for the betterment of the conditions

| native Hawaiians, the state claims to be frustrated

in their efforts to provide homesteads by the Navy’s

refusal to give them another 1400 acres. Petitioners

can understand the frustration of Attorney General

Warren Price, when he lost his attempt to recover the

Lualualei land by suit against the Navy in federal

court. (State of Hawaii v. United States. 676 F.Supp.

1024 (D.Haw. 1988). af fed, 866 F.2d 313 (9th « Ir.

9g \

89.)

“Attorney General Price, in his congressional

testimony, noted that ‘our efforts to obtain

relief from the United States as to the Lualualei

] |

lands was met with technica] arguments that the

28 PRICE STATE OF HAWAII

Government has Immunity, and will give the lands

back to the State of Hawaii when they are good

and ready.’” /d., at 18.

But had the effort been successful, native Hawaiians

would not have been any better off. The state respon

dents would simply have had another 1400 acres to dis

tribute as political patronage.

“On Oahu, the most populous island with the

greatest demand for homes, only 921 acres are

homesteaded by Native Hawaiians. The remaining

5,609 acres are used for other purposes, including

nearly 1,400 acres by the U.S. Navy. /d.. at 23.

Thus, the 1,356 acres of homestead land occupied by

the Navy is not the reason why native Hawaiians are

living in cardboard boxes. There is plenty of land for

homestead purposes. State officials merely choose t

use it for other purposes.

Nevertheless, Hawaii’s congressional delegation is

working hard on behalf of the state respondents t

enact a federal “right to sue” law for native Hawai

ians. In August, 1989, extensive public hearings were

conducted by the Senate Select Committee on Indian

Affairs and the House Committee on Interior and Insu

lar Affairs. A hearing is presently scheduled fo:

February 6, 1992 before the Senate Committee on

Energy and Natural Resources to review the status and

recommendations of the 1983 Federal-State Task Force

on the Hawaiian Homes Commission. Sen. Inouve’s

office is presently drafting a federal “right to sue” bill

If such legislation is enacted, Petitioners fear the

state respondents will argue that the statutory remedy

precludes any remedy under § 1983 against them

The problem of homeless native Hawaiians was s

vedin 1959 when < ongress inserted § 5(f) intothe] lawall

Admissions Act. Congress more than adequately provi

ded for the welfare of the native Hawaiians. (

was also more than generous to the State of Hawaii.

Nothing more 1S needed now than to entor ce the law

as it presently exists. For that purpose, this court

Should grant certiorari. Petitioners have been engaged

in litigation with state respondents for nearly twelve

years. Although Petitioners have met with

sucCceSS In asserting thei! right to sue unde r § 1983.

State respondents have not yet answered

interrogatories.

Once It 1S made clear to the State offic:

Cannot continue to engage in dilatory

ne merits of these cases, they W i! ] soli e the pr b]

tactics to AaAVOIC

[he resources avaliable dre vast

native Hawaiian are Small.

CONCLUSION

For the foregoing Important reasons, Petitioner

respecttully request this Court to issue a Writ of

Certiorari to the Ninth Circuit Court of Appe.

review its opinion in Price v. State Of Hawaii, C.A.

Nos. 90-15117 and 9 15863, filed July 11, 1991.

amended August 8, 1991, amended September 18, 1991.

and published as Price ». state of Hawaii, 939 F.2d

702 (9th Cir. 1991)

Dated: Honolulu. Hav ali, January 28. 1992.

R f 1] ] }

NES pec tiully Submitted

‘

Walter R, S¢ he ett le

)

( ¢ ounse| ol Record)

z ]

Kamuela Price

\ PPI NDIX

Nos. 90-15117, 90-15863.

D.C. No. CV-89-0561-HMF

United States Court of Appeals

for the Ninth Circuit

Dr. Nui Loa PRICE, aka Maui Loa, individually and in

his capacity as chief of the Hou Hawaiians; The Hou

Hawauans, a Native Hawaiian Ohana; and Kamuela

Price, individually, and In his capacity as member of

the elder council of the Hou Hawaiians, Plaintiffs-Ap-

pellants,

¥.

STATE OF HAWAII, William W. Paty, individually

and as Chairman of the Board of Land and Natural Re-

sources of the State of Hawaii; Herbert K. Apaka,

Jr.; Moses W. Kealoha; J. Douglas Ing; John Arisumi;

Herbert Arata, individually and as Members of the

Board of Land and Natural Resources of the State of

Hawau; John Waihee, individually and as Governor of

the State of Hawaii; The Honolulu Sailors Home Socie-

ty, a Hawaii non-profit corporation; HFSL Corp., a

Hawai corporation, dba Harbor Associates; Peter S.

Smith, dba Smith Development Corp.; Glenn K. Oka-

da, dba G.K.O. Corp.; and HonFed Bank, a federal

savings bank, Defendants-Appellees.

Appeal from the United States District Court

for the District of Hawaii.

Harold M. Fong, Chief Judge, Presiding

Argued and Submitted

June 11, 1991--San Francisco, California

Filed July 11, 1991

2a PRICE v. STATE OF HAWAII

Amended September 18, 1991

Before Robert R. Beezer, John T. Noonan, Jr. and

Ferdinand F. Fernandez, Circuit Judges.

FERNANDEZ, Circuit Judge:

Once again we visit the scene of the ongoing contest

which pits Dr. Nui Loa Price, Kamuela Price and the

Hou Hawaiians (appellants) against the State of Hawaii

(the State) and a number of its officials. ' This visit we

find a pitched battle into which a number of private

parties have also been drawn. Those parties are the

Honolulu Sailors Home Society (HSHS), HFSL Corpor-

ation, dba Harbor Associates, Peter S. Smith, dba

Smith Development Corp., Glenn K. Okada, dba

G.K.O. Corporation, and HonFed Bank. We will some-

times refer to all of this group as the “private appel-

lees.” Appellants claim that a certain parcel of land in

which the private appellees purportedly have an interest

is, in fact, owned by the State and is subject to the pub-

lic trust which was created at the time that the State

was admitted to the Union. Based upon the facts pled

and otherwise before us in this action, we disagree and

we affirm the district court’s dismissal of the action

as to all defendants other than the state officials.

PROCEDURAL POSTURE AND

BACKGROUND FACTS

In 1893 the Provisional Government the Hawaiian

Islands granted a parcel of land to HSHS (the lot). The

-—1 Those officials are: William W. Paty, Herbert K. Apaka, Jr., Moses

K. Kealoha, J. Douglas Ing, John Arisumi, Herbert Arata and John

Waihee. They are hereafter referred to as “the state officials.”

Appendix 3a

grant provided that the lot “shall be used only for the

purposes and uses of a Sailors Home . . . equally avail-

able to the sailors of all nations. . . .” It went on to

provide that if the “described lot or any part thereof

shall at any time cease to be used for the purposes of a

Sailors Home, the whole of said lot shall forthwith re-

vert to the Governmeiit of the Hawaiian Islands.”

HSHS took possession of the lot and commenced using

it for a sailors home. Unfortunately, as is so often true

when perpetual restrictions are imposed upon the uses

of land, changes in the uses of surrounding properties

made the restriction outdated, onerous and lacking in

economic sense. The lot is in the heart of Honolulu’s

downtown business district.

HSHS, however, did not simply violate the restric-

tions and abide the consequences. Rather, it commenced

legal proceedings in whichit asked the courts of Hawaii

to approve certain plans in advance. Those plans would,

in the opinion of HSHS, make use of the lot ina way

that carried out the intent of the grantor, eventhough the

uses may not, at firstblush, have appeared to have been

within the specific terms of the grant itself. HSHS re-

sorted to the courts on three separate occasions, but

only the last resort is the subject of this case.

In 1969, HSHS filed an action in which the State was

made a party. The Attorney General of the State ap-

peared and represented its interests. At that time, the

Circuit Court of the First Judicial Circuit of the State

of Hawaii determined that the lot itself was not going

to be the physical location of a sailors home, but that

its use in combination with other adjacent property

would “constitute an actual physical use of a substan-

tial portion of the premises for sailors.” Moreover,

said the court, this would be a “fair, just and reason-

4a PRICE v. STATE OF HAWAIT]

arrangement. See Findings of Fact and Conclu

sions of Law in Jn re the Honoluly Sailors’ Home So.

ciety, CV No. 28078 (July 14, 1969). See also the jud

ment of even of date. In other words. the court placed

its imprimatur upon the contemplated transaction

Appellants were not pleased with the fact that, in

effect, no sailors’ home was actually to be located on

the lot itself. Thus. in 1989, appellants commenced this

action for the purpose of having the private appellees

ejected from the lot and of having the State commence

receiving any income whic| the lot then produced. The

‘op

erty rights is before the federal courts is to be found in

section 5(f) of the Hawai; Admissions Act. Pub.L. 86

3, § 5(f), 73 Stat. 4 (1959) (the Act). As pertinent here.

section 5(f) reads as follows, and we have emphasized

)

reason that what appears to be alocal] dispute over pr

the part most pertinent to our discussion:

The lands .. . together with the proceeds from

the saleor other disposition of any such/ands and the

income therefrom, shall be held by said State as a

public trust for the Support of the public schools

ind other public educationa] Institutions, for the

betterment of the conditions of native ] lawalians.

tor 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 in

come shall be managed and disposed of for one or

more of the fo “egoing 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 SuLL may be brought by

, , ; >

the United States.

Appendix ya

Appellants assert that since the rights of the Provi

sional Government in the lot passed to the United

States and thence to the State upon its admission to the

Union, those rights are subject to the provisions of

section 5(f) of the Act. That being so, Say the appel

lants, the State through the inaction of its officials has

lowed an improper diversion of revenues that should

nave come into the State’s hands and been used for sec

ion 5(f) purposes.

This is not the first time that appellants have accu

sed the State and its officials of violating the trust im

posed upon the land which was ceded to the State under

the terms of the Act. See Price v. Akaka, 928 F.2d 874

(9th Cir.1991) (superseding 915 F.2d 469 (9th Cir.

990)) (Akaka); Price v. State of Hawaii, 921 F.2d 950

(9th Cir. 1990) (Price II): Price v State of Hawaii,

764 F.2d623 (9th ¢ 1r.1985). cert.denied. 474U.S. 1055,

106 S.Ct. 793, 88 L.Ed.2d 771 (1986) (Price 7). In each

of those cases, as well as others hereinafter noted, we

were required to explore the interface between state and

federal law which was created upon the passage of the

Act. We must now do so again, although, as will appear,

many of the issues before us have already been decided

in Our prior visitations to this area.

JURISDICTION AND STANDARD

OF REVIEW

[he district court had jurisdiction pursuant to 28

U.S.C. § 1343 and 42 U.S.C. 1983. We have jurisd

tion pursuant to 28 U.S.C. § 1291.

We review the grant of summary judgment and the

grant of a motion to dismiss de novo. Pric, ran

F.2d at 954. Issues of eleventh amendment and qualified

mmunity are also reviewed de novo. /d Questions

6a PRICE v. STATE OF HAWAII

immunity which arise from facts not in dispute also

present issues of law. Jd.

We review the district court’s award of fees under

Rule 11 for anabuse of discretion. Townsendv. Holman

Consulting Corp., 929 F.2d 1358, 1365-66 (9th Cir.

1991) (en banc) (superseding 914 F.2d 1136, 1143 (9th

Cir. 1990) (en banc)). Attorneys fees awards under 42

U.S.C. §1988 are also reviewed for abuse of discretion.

Barry v. Fowler. 902 F.2d 770, 773 (9th Cir. 1990).

DISCUSSION

4 “4 j

\j ndino

fEe LANAI a

At the outset, we are met by the State’s assertion

that appellants lack Standing. This issue can be quickly

disposed of. We have previously made it clear that per

sons in the position of these appellants do have Standing

to challenge the use of section 5(f) lands. See Akaka.

228 F.2d at 826-27: Ulzleo v. Paty, 902 F.2d 1395, 1397

(9th Cir.1990): Price [, 764 F.2d at 630. As we have

Said, although section 5(f) itself does not provide a pri.

vate right of action, an action under 42 U.S.C. § 1983

1S proper. Ulaleo, 902 F.2d at 1397; Keaukaha-Panaewa

= Ae |

Community Ass’n v Hawatian Homes Comm’n., 739

F.2d 1467, 1470-71 (9th Cir.1984) (Keaukaha IT).

B. [Immunity ; Dismissal of the State and th State

Of ficials.

(1) The State.

Appellants have. once again, attempted to sue th

State. As we said in Price II, 921 F.2d at 958. “Tt 1s

pellucid that they cannot. for the eleventh amendment

prohibits it.” Thus. the district court properly dismis

sed the action against the State itself.

(2) State Officers in their Official ( apacity.

The complaint seeks retrospective relief against the

State aoa It seeks no prospective relief against

them. To the extent that it js intended to be an action

against them in their official] Capacities, it is likewise

barred by the eleventh amendment, and the district

court’s dismissal was proper. See Ulaleo, 902 F.2d at

1398-1400,

(3 ) State Officers in their Individual Ca ipacities.

There can be little doubt that appellants could bring

their action Paha: section 1983 against the state off;

cials in their individual Capacities, even if those

officials were performing their govern irre duties

when aN committed the alleged wrongs. Akaka, 928

.2d at 828. The district court’s lc eieteian to the

contrary was in error.

However, the State officials argue that the facts which

appear onthis recordmake it clear that they are entitled

to qualified immunity. There can be no doubt that their

activities or lack of activities regarding the lot in

question were disc retionary functions. As we Said in

Price II, 921 F.2d at 958: ‘ LO]fficials performing discre

tionary functions, as were these officials, are entitled

to qualified immunity if their conduct ‘does not violate

clearly established statutory or constitutional rights of

which a reasonable person would have known.’ Harloy

v. Fitzgerald, 457 U.S. 800, 818. 102 S.¢ st. 2727, 2738.

73 L.Ed.2d 396 (1982).” However. the issue was not

raised in the motion before the district court, althou

it was raised in the state officials’ answer.

We recognize that in order to avoid a qualified im

munity claim the appellants must show that the law

Supporting the following chain of reasoning was clearly

Sa PRI

established, Harlow, 457 U-S. at 818. 102 S.C

cs ae

2738: that the State’s interest was an interest in land. -

that the land reverted to the State when the 1969 trans

action was consummated. 3 and that the failure to col

lect revenues from the land since that time resulted

a violation of section 5(f) of the Act, 4 all of

leads to liability of the state officials under section

1983.

Ail

which

While we have serious doubts that the plaintiffs can

overcome the difficulties involved in showing. that

objectively speaking, the officials violated clearly

established legal principles, immunity is an issue that

should first be addressed by the trial court. S$

’

/ ,

cc; 46, 2

2 NV he t ignt held ¢t : S$ al "

€a Is > I eA it

reterr sect ns imatters Da

; A oO +

agecis Vat 4 4 ) , f S7 ( TA

Ply prests it [ sthet r r

V he } rt prant ) } cf I 5 t! iW !

} ? r

| rim i rail |

is ft is wel Dee to ascer ’

¢ é i Pr perty §23 \ 1 t -)

i rt f ef ri r r [ per 1 } ;

atter, theSta would have tak

r pr pert yer i

| 2

. if 4 %

Nad ¢ W ¢ s 7

1 ¢ 7D ransa Vas x pI api

h S ed its decree 14.1969. Asw ac

at was a pr ¢ 9 m ate was a pa

{ I nat ti iaW

\ppellants joined HSHS and t

ees inthis section 1983 action, ® but the compl: ’

ipe

no facts to Support the claim that the pI Ilva

ere acting under color of state law. On the contrary.

the allegations of the complaint make it clear that

HSHS is the owner in fee simple of the lot, subject to

i. Ge limitations and reversionary interest of tne

| | T a ~

State which we have already described. Nothing ;

mmplaint suggests that the private appellees have

; — : _

anything that any other holder of fee title to land would

.~ SCC. t course, the

t have done seeking of court

approval before taking actions that

" ee

used divestment of the property. None of thi

whisper of a suggestion that these apps

ed with the State in any sense whatever

We recognize that this case was di

iding stage pursuant to Rule 12(b)(

iles of ¢ ivil Proc edure. We ilso rec on

eat liberality in federal ple iding. Con

95 U.S. 41, 47-48. 78 S.Cr. 99 103, 2

57);*T rixler Brokerage Co Ralston P

5 F.2d 1045, 1050 (9th Cir.1974 However

rties are not generally acting under

1Qa PRICE v. STATE OF HAWAII

law, and we have stated that ~ [cJonclusionary allega-

tions, unsupported by facts, [will be] rejected as insuf-

ficient to state a claim under the Civil Rights Act.’’

Jones v. Community Redev elopment Agency, 733 F.2d

646, 649 (9th Cir. 19 184) (citation omitted). This js

appropriate for, as the Supreme Court has said:

Careful adherence to the “state action” require

ment preserves an area of individual freedom by

limiting the reach of federal law and federal judi

cial power. It also avoids imposing on the State,

its agencies or officials, responsibility for conduct

for which they cannot fairly be blamed. A major

consequence 1s to require the courts to respect the

limits of their own power as directed against state

governments and private interests.

Lugar v. Edmondson Oil (50:, “ale 457 U.S. 922. 936

7, We OAs 2744, 2753, 73 L.Fd.2 yt pal

Of course, the hens -rmination is usually “fact bound”

and that militates against too hasty a termination of an

action. Jd at 939, 102 S.Ct. at 2755. Nevertheless, a

defendant is entitled to more than the bald legal conclu

sion that there was action under color of state law. The

Supreme Court has “insisted that the conduct allegedly

causing the deprivation of a federal right be fairly at

tributable to the State.” Jd. at 937, 102 S.Ct. at 2753.

deciding whether action is attributable to the State, a

two-part test is applied:

First, the deprivation must be caused by the exer

cise of some right or privilege created by the State

or by a rule of conduct imposed by the State or by

a person for whom the State is responsible....

Second, the party ch arge -d with the oe

must bea person who may fairly be said tobe a state

Appendix lla

actor. This may be because he is 4 State official.

because he has acted together with or has obtained

significant aid from state officials. or because his

conduct 1s otherwise chargeable to the State.

ld 2t 75/. 102 § Ct. at 2753-54.

ppellants suggest nothing which indicates that the a

ae the private appellees were in any way imposex d by

the State or that hey exercised some right granted by the

State, exc ae the extent that they sought state court 1p

proval of their 1969 plan before going ahead with it. But

appellants do not allege that seeking court approval con

ee State ac tion, and, of cour ) a "mer ely resorting to

the courts . .. does not make a party a co-conspirator

or a joint actor with the judge.” Dennis v. Sparks, 449

U.S. 24, 28, 101 S.Ct. 183, 186, 66 L.Fd.2d 185 (1980)

A person may become a state actor by conspiring

ith a state official, zd. or by engaging in joint activity

with state officials. Sable Communications v. Pa AT

rel. € Tel. Co., 890 F.2d 184, 189 (9th Cir.1989 (de

v. 44 \ x \ ¥ 2 : 4%

i n ate . N S pt

T r r sCCT

I rac li Sey Pa l A, y Wa ¢ apy

2 ae 1% v. Le e ( ete C ‘S

2077, 114] 12d 66 9 wv | t ( é that racia

eren tor cnallenges ivil Cases ] ( ] Sys

lignan 11S m ationin tr m it t, re Ww eve

t } | r r f nr

ate ¢ rt was deal ewitn areia simy Cal prot i

' %

st issue which had no facinorous overtones v é Atany ra

+ ¢} Lino + te 1 nr , zz r +}

r tne seeking of tate court approval wer ne wr f

(Mat occurred in 1969 and the statute f i 1s

riaw ke > ¢ dong at IRR (

1 594 Pe

fendant sought the aid of law enforcement offi. ials

order to use further procedures that would violate the

plaintiff’s first amendment rights). A person may als.

become a state actor by becoming so closely related to

the State that the person’s actions can be said to be

those of the State itself. That might be found because

the nexus is so close as to cause the relationship to be

mbiotic. Burton v. Wilmington Parking Auth., 365

UD. FED, Jae BIS Cx 856, 862, 6 L.Ed.2d 45 (1961):

Vincent v. Trend Western Technical Corp., 828 }

963, 569 (9th Cir.1987). It might also be for such other

1 |

reasons as performing public functions or being regula

ted tothe point that the conduct in question is practically

compelled by the State. Vincent. 828 F.2d at 568-69.

None of these forms of connec tion between the Stat:

and the private appellees is pled here, nor are any of

them hinted at. On the contrary, HSHS received

grant of property and has treated that property as its

wn for almost one hundred years. In othe

since there was no sufficient pleading that the

appellees were acting under color of state law, the dis

trict court properly dismissed the action as to them

J hws ~~ ae 2 4+? [2 aA P RIC LIC

i. /IWaATYa O Altorne yo . eee €C F272 Oei oO.

(1) District Court Award.

[he district court awarded fees against appellant

und their counsel and in favor of HSHS. It did so based

upon Fed. R.Civ.P. 11, and 42 U.S.C. § 1988.

Af pella ’ pas & oC { suppes it pe Da

“~ 1] la wt [ 1 HS Sa t rp i

intsin thisaction. Pend part urisdict 11S mOt ava

iC y [ nitea 5 4Aic€ 1K S 545 109 S.¢ t 40 | ) 4 |

€a iidingerv.H Wa 4 S. 1.96 §.¢ 413,491 | f )

y 1

In Making that award, the district

9 ict court found that

as aie sabi ui 1T4 piv > i . ; ] | < < } th t tr T

LIICT € WaS Simp Y no actual basis for Lni@ «SC laImM !

HSHS was acting under color of state lav

was also impressed with the fact that HSHS had

peatedly asked for a dismissal] without prejudice, and

had made appellant aware of the legal and factual! pos

tions of HSHS. In addition. it ippeared that the parties

had orally agreed upon a dismissal without prejudic.

| 1 ’ ]

but that appellants’ counsel! refused to sign a writt

A . { th,

iyreement M reover Appeé llants. an nei ( ]

] ] |

} lo , ) )

'alled to appear to contest the requested fee award

The 1; Tr t lint thy < loft 11n { th th, . t1

1 [i¢ 11S| Ll ¢ ul | tus Geterm nea tnat i1¢ i¢ l

an award of fees against the plaintiff may be mad

under section 1788, the action must be meritless and

\ ith ut four Gat I lTuenesS é Rowse 44 } 5 5) + ivi

5 4 f 172 17 | | ! 4 i ORl ; f 1 ry

Vl iv 2 5 i £Q ) 17S ifMlat 1S pi €

Nat the d I Irt found here

T> 1 44 } ff ] | ] 8,

Nule il pr ideS a dillerent standard ler Ku

| ,

| ‘ I ‘fr ‘ ‘

la irag is required if a paper whicn 1S frivolous

y ; y j

I ed bY a: YWITSE 71a {1 olman ( O?7 tiilv ( O7 Z

. 43 - rT | ; j |

.2d at 1562. Mere the district court found thatthe { ¢

, yy YF Ty

ai. ae a a

/ the complaint against HSHS was, indeed. fr: us

sere ' | ]

we recognize that the state action con ept canbe mur

; . ; ;

it its depths Dut when one 1s as close to its surface

a :

iS we arein this case the< mncept has much greater clar

f CT oe | saee L, — ae 6 a | i oe oe

ity ricre, pecause the complaint so patently failed

( ) , TJ los > 1 ¢ * )

state a claim against HSHS under section 1983 and by

cause appellants andtheir counsel eschewed the opportu

ft its idea that the « id1IMm Was entirely baseless ¢

‘ ty -

l4a PRICE v. STATE OF HAWAII

unable to say that the court abused its discretion when

it awarded fees grounded upon both section 1988 and Rule

11. We, therefore, affirm its decision regarding fees.

(2) Fees on Appeal.

We, too, have the discretion to award fees on appeal

when the appeal itself is frivolous. See 42 U.S.C. §

1988. Particularly in light of the district court’s deci-

sion, we have given close attention to the request here,

and to the arguments, some of them new, which appel-

lants have suggested to us.

While we have not adopted appellants’ arguments

regarding the private appellees, we are not convinced

that the appeal itself is frivolous. Beyond that, we have

been subjected to arguments by the appellees in this

case--arguments adopted by HSHS and the other private

appellees--on issues which, themselves, have previously

been settled by us. See, for example, Part A of this Opin-

1on regarding standing. Appellees have even suggested

that there is no section 1983 action available regarding

failure to follow section 5(f) of the Act. Again, the

contrary has long since been settled by us. See Price

11, 921 F.2d at 956; Akaka, 928 F.2d at 827-28; Ulaleo,

902 F.2d at 1397; Keaukaha I], 739 F.2d at 1470-71.

Accordingly, we will not exercise our discretion to

award attorneys fees to any of the parties in this case.

CONCLUSION

Appellants have once again presented claims that

10. This is not antithetical to our determination regarding the dis-

trict court's award of fees. We must exercise our own discretion

when fees are requested on appeal. We deferentially review the dis-

trict court's exercise of discretion when it awards fees. The standards

are different. So may be the results.

Appendix 15a

the State of Hawaii and its officials have failed to

carry out their solemn duties under the Hawaii Admis-

sions Act. Their claims against the State have spent

themselves upon a revetment built of immunity princi-

ples. Their claims against the private appellees have

fallen far short of meeting the requirement that those

parties must have acted under color of state law. How-

ever, they may continue to pursue their damage claims

against the state officials at this time.

We have previously said that these appellants can

call the responsible parties to account when section

5(f) of the Act is violated. Price IJ, 921 F.2d at 959.

However, in order to do so appellants must, like

everyone else, bring the right claims against the right

individuals. Here the combination of a failure to seek

prospective relief against the state officials and a tem-

erarious attack on private individuals, who were

merely using land which had been deeded to them, has

brought the greater part of appellants’ action to nought.

The success or failure of the remainder awaits the

skirmishes of another day.

AFFIRMED IN PART and REVERSED IN PART.

l6a PRICE v. STATE OF HAWAII

Nos. 90-15117, 90-15863.

United States Court of Appeals

for the Ninth Circuit

Dr. Nui Loa PRICE, et ai.

Plaint f f-Appellants,

STATE OF HAWAII, et al.

De fendants-Appellees.

Filed September 18, 1991

ORDER

Before: BEEZER, NOONAN and FERNANDEZ,

Circuit judges.

The amended opinion filed in this case on August 8,

1991, is further amended as follows: at page 10672 of

the slip opinion the first paragraph ua'er Part D (1) is

amended to read as follows:

The district court’awarded HSHS fees against

appellants and their counsel, Walter R. Schoettle.

It did so based upon Fed.R.Civ.P. 11, and 42

U.S.C. § 1988.

Appendix 17a

D.C. No. C V-89-0561-HMF

United States District Court

for the District of Hawaii

Dr. Nui Loa PRICE, aka Maui Loa, individually and in

his capacity as chief of the Hou Hawaiians; The Hou

Hawaiians, a Native Hawaiian Ohana; and Kamuela

Price, individually, and In his capacity as member of

the elder council of the Hou Hawatians, Plaintiffs-

Appellants,

¥i

STATE OF HAWAITI, William W. Paty, individually

and as Chairman of the Board of Land and Natural

Resources of the State of Hawaii; Herbert K. Apaka,

Jr.; Moses W. Kealoha; J. Douglas Ing; John Arisumi;

Herbert Arata, individually and as Members of the

Board of Land and Natural Resources of the State of

Hawaii; John Waihee, individually and as Governor of

the State of Hawaii; The Honolulu Sailors Home

Society, a Hawaii non-profit corporation; HFSL Corp.,

a Hawaii corporation, dba Harbor Associates; Peter

S. Smith, dba Smith Development Corp.; Glenn K.

Okada, dba G.K.O. Corp.; and HonFed Bank, a

federal savings bank, Defendants-Appellees.

Filed December 07, 1989

at 10 o’clock and 10 min. a.m.

ORDER GRANTING STATE DEFENDANTS’

MOTION TO DISMISS AND PRIVATE

DEFENDANTS’ MOTION TO DISMISS

COMPLAINT AND ACTION

18a PRICE v. STATE OF HAWAII

INTRODUCTION

Iwo motions to dismiss Plaintiffs’ complaint or, in

the alternative, for Summary judgment appear before

the court. One is brought by the state defendants. the

State of Hawaii, William Paty, Herbert K. Apaka,

Jr., Moses W. Kealoha, J. Douglas Ing, John Arisumi.

Herbert Arata and Governor John Waihee. The state

defendants primarily assert sovereign immunity from

this suit under the Eleventh Amendment. The other mo

tion is brought by the private defendants, Honolulu Sail-

ors’ Home Society, HFSL Corp., Peter S. Smith, Glean

K. Okada, and HonFed Bank. Their motion primarily

argues that the complaint fails to state a § 1983 claim

against them as private individuals. Plaintiffs oppose

both motions.

These motions for dismissal or Summary judgment

came on for hearing before this court on December 4,

1989. Walter R. Schoettle appeared on behalf of plain

tiffs. Randall Y.K. Young and Charlotte E. Libman ap-

peared on behalf of the State of Hawaii and the other

state defendants, Keith J. Steiner appeared on behalf of

the defendant Honoluly Sailors’ Home Society, Lissa

H. Andrews appeared on behalf of defendant HonFed

Bank, and Glenn H. Kobayashi appeared on behalf of

defendants HFSL Corp., Peter S. Smith, and Glenn K.

Okada. The court, having reviewed the motion and the

memoranda in support thereof and in opposition there

to, having heard the oral arguments of counsel, and being

fully advised as tothe premises herein, finds as follows:

Plaintiffs bring this claim for monetary, injunctive

and declaratory relief under 42 U.S.C. § 1983 (1982) as

Native Hawaiian special beneficiaries of a trust imposed

by § 5(f) of the Hawaii Admissions Act upon certain

A ppendix 19a

lands granted by the United States to the State of

Hawa by § 5(b) of that Act. The complaint alleges

that on March 21, 1893. the provisional Government of

the Hawaiian Islands executed and delivered a deed for

a certain parcel of land to defendant Honolulu Sailors’

Home Society (hereinafter “HSHS”) for use as a sail

ors’ home upon the condition that “if the herein descri-

bed lot or any part thereof shall at any time cease to be

used for the purposes of a Sailors’ Home. the whole of

said lot shall forthwith revert to the Government of the

Hawaiian Islands.” In 1898 the United States annexed

the Hawaiian Islands. As part of the Joint Resolution

Annexation, the U seed States allegedly acquired the

Hawaiian government’s reversionary interest in the

subject property. On August 21, 1959, the United

States admitted Hawaii as its fiftieth state through the

Hawai Admissions Act. P.L. No. 86-3, 73 Stat. 4(1959).

Section 5(b) of that Act granted the reversi ionary inter

est to the new State of Hawaii. Under § 5(f), the lands

conveyed to the State of Hawaii under § 5(b) Shall be

held by the State as a public trust to be used in any of

five enumerated purposes, including “for the better-

ment of the conditions of native Hawaiians.” The St ate

delegated the responsibility as trustee to its Bureau of

Land and Natural Resources.

On October 3, 1969, HSHS entered into a lease de-

mising a portion of the subject property together with

other properties to Harbor Properties for the purpose

of developing the properties as a residential and com

mercial leasehold condominium, the Harbor Square

Condominium. The Harbor Square Condominium con

sists of two towers, the Harbor Tower (which is on

the subject property) and the Town Tower (which is

not). [he Harbor Square Condominium continues to house

ola

2VUa PRICE v. STATE OF HAWAII

a Sailors’ Home Apartment consisting of 3650 square

feet on the first floor and 4515 Square feet on the

second through fourth floors which shall be occupied

and used for all purposes permitted by the HSHS char-

ter. Since the Sailors’ Home Apartment falls exclusive-

ly within the Town Tower, which is not on the subject

property, Plaintiffs assert that no part of the subject

land is now used as a sailors’ home, thus violating the

conditions of the 1893 grant. As such, Plaintiffs con-

tend that the land reverted back to the grantor govern-

ment of the Hawaiian Islands and that the State of Hawaii

as trustee of the § 5(f) trust has succeeded to the inter-

ests of the provisional government through the Joint

Resolution of Annexation and the Admissions Act.

Plaintiffs allege that since October 3, 1969, HSHS

and the developers (private defendants) have wrongfully

received rents, issues, and profits from the subject

property and that such monies rightfully belong to the

beneficiaries of the § 5(f) trust. They also allege that

by virtue of the § 5(f) trust, the state defendants as

trustees owed a duty to plaintiffs to recover possession

of the subject property and the moneys wrongfully lost.

Finally, Plaintiffs assert that the defendants, acting

under the color of state law, have deprived plaintiffs of

the rights guaranteed them by § 5(f) and that if the state

defendants are permitted to continue as unsupervised

trustees of the subject properties, the beneficiaries

will suffer irreparable loss and injury.

Plaintiffs pray for numerous forms of relief. First,

they ask that private defendants HSHS, HESL Corp.,

Smith, Okada, and HonFed be required to set forth the

nature of their claims to the subject property. Second,

plaintiffs seek a declaration regarding the nature of

those private defendants’ claims to the subject prop

A ppendix 21a

erty. Third, plaintiffs seek declaratory judgment that

the trustee State of Hawaii owns the subject property

in fee simple in trust for the benefit of plaintiffs and

other beneficiaries under § 5(f} of the / Admissions Act.

They ask the court to find a reversion of the estate

created by the 1893 grant upon the interruption of use

as a sailors’ home and to find that the private defen

dants have no legal interest in the property. Fourth

they ask the court to permanently enjoin the private de-

fendants from asserting any claim in or to said proper

ty adverse to the trust. Fifth, plaintiff seek a monetary

judgment against all defendants, jointly and severally,

in the amount of all rents, issues, and profits wrongfully

received from the subject property by defendant HSHS

and the other private defendants since the date of the

lease, together with interest thereon. Sixth, plaintiffs

ask the court to appoint plaintiff Doctor Nui Loa Price.

or some other suitable person having sympathy for native

Hawaiians’ concerns, as co-trustee with respect to the

property recovered herein on behalf of the trust estate.

Seventh, in the event their § 1983 claim succeeds, they

seek payment of their attorney’s fees as a prevailing

party pursuant to 42 U.S.C § 1988. Finally, they ask

for such other relief as may be just and proper.

DISCUSSION

. State Defendants’ Motion to dismiss or for

Summary judgment.

"he state defendants, who include the State of

Hawaii, state officials in their official c apacity and

state officials in their individual capacity, move the

court to dismiss plaintiffs’ complaint or, in the alterna

tive, to grant summary judgment in their favor. They

» he,

iia PRICE v. STATE OF HAW ATI

assert sovereign immunity from. this suit, challenge

plaintiffs’ Standing to pursue this action, question the

existence of § 1983 claim to enforce § 5(f) of the Ad-

missions Act, and contend that plaintiffs have other.

wise failed to state a claim upon which relief can be

granted under § 1983.

A. Sovereign Immunity and jurisdiction.

The state defendants assert that this court has no

Jurisdiction to resolve the claims against them because

of their sovereign immunity as guaranteed by the Elev

enth Amendment to the Constitution. Thus. they move

for dismissal of the complaint under Federal Rules of

Civil Procedure Rule 12(b)(1). For the purposes of

clearer analysis, the state defendants divide into three

Categories: the State of Hawaii, state officials in their

official capacity, and state officials in their individual

Capacity.

1. Claims Against the State of Hawaii.

The State of Hawaii correctly argues that it has not

waived its sovereign immunity, and thus this suit js

barred by the Eleventh Amendment regardless of the

relief sought. Papasan v. Allain, 478 U.S. 265, 276, 106

S.Ct. 2932, 2939 (1986). Although they disagree with

the rulings, Plaintiffs concede that the prior rulings of

this court and other courts in litigation involving native

Hawaiians compels dismissal of the complaint against

the State of Hawaii. A court will only find that a state

has waived its sovereign immunity where stated “by

the most express language or by such over whelming

implications from the text as [will] leave no room for

any other reasonable construction.” Price v. State of

Hawaii, 764 F.2D 623, 629 (9th Cir. 1985) ( einafter

) (her

“Price I”), quoting Edelman v. Jordan, 415 U.S. 651.

673 (1974).

Although the Hawaii Admission Act authorizes the

United States to sue the State that act does not remove

the State’s sovereign Immunity from suit by the Hou

Hawaiians and their representatives. Jd. at 629. The

State has also waived part of its sovereign immunity

and has consented to suit for certain contract and tort

claims. Haw. Rev. Stat. §§ 661-1, 662-2. The State.

however, consented to suit only in State courts and not

to suit in federal court. In a 1981 case, In re Holo-

holo, 512 F.Supp. 889 (D.Haw. 1981), this court held

that these statutes waived the State’s sovereign immu-

nity from suit in federal court and asserted jurisdiction

over the State. In 1984, however, the Hawai; legisla

ture amended the statute with the express purpose to

“declare the intent of the legislature in amending sec-

tion 661-1 and 662-3 .. . to extend jurisdiction to dis-

trict courts in tort actions -on claims against the State

and certain other claims against the State, was originally

and is not to extend jurisdiction for such actions and

claims against the State to state district courts, and

not to extend jurisdiction for such actions and claims

to federal district courts.’ 1984 Sess. Laws of

Hawaii, Act 135 at 258 (emphasis added). The legisla-

ture went on to state that “[t]his Act is a response to

the court’s erroneous interpretation of section 662 3.

Hawaii Revised Statutes, in Jn re Holoholo.” Td.

Therefore, these §§ 661-1 and 662-3 cannot be read as a

consent to suit in federal court, and all claims against

the State of Hawaii must be dismissed for lack of jur-

iSdiction, including those for monetary. injunctive, and

declaratory relief.

2. Claims Against State Officials in their Officia

5 hr r 7 7 — , . re

24a PRIC}I v. STATE OF HAWA

Capacity.

Against the state officials acting in their official]

capacity, plaintiffs seek monetary damages for rents,

issues, and profits, and for attorney’s fees. Oddly.

plaintiffs’ complaint does not seek injunctive relief or

declaratory relief against the state officials in their

official capacities.

The Eleventh Amendment immunizes state officials

acting in their official] capacity from suits for retro

active monetary relief in federal court. Price J. 764

F.2d at 6298, citing Pennhurst State School & Hospital

v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 909 (1984),

Even more, the United States Supreme Court has held that

neither States nor state officials in their official capaci

ties are “persons” who may be sued under § 1983. Wi//

v. Michigan Dept. of State Police, 109 S.Ct. 2304 (1989).

The Eleventh Amendment immunity extends to state off;

cials because any judgment against a state official in

that capacity will ultimately be paid by the state. Allow-

ing suits for monetary relief against state officials in

the face of this reality would undermine the Eleventh

Amendment immunity and render it me aningless.

A plaintiff, however, may sue a state official in his

official capacity for prospective relief, such as an

injunction, that governs the state official’s future

conduct. Price J, 764 F.2d at 629; Pennhurst, 465

U.S. 89, 102-03: 104 S.Ct. 00, 909 (1984). This legal

principal cannot preserve plaintiffs’ complaint as it

pertains to the claims against the state officjal<

because plaintiffs have failed to seek injunctive or

other prospective relief against the state officials in

their official capacities. Plaintiffs seek injunctive

relief only against the private defendants to prevent

them from asserting any claim to the subject property.

The request for the court to appoint a native Hawaiian

to serve as co-trustee, although prospective, is not

sought against state officials. Since the State itself is

the sole trustee of the § 5(f) trust, that request must be

perceived as an action against the State only.

Similarly, plaintiffs’ complaint does not seek a de

claratory judgment against the state officials in their

official capacity. Plaintiffs seek a declaration regard

ing the nature of the private defendants’ interests in the

subject property, a declaration that the State of Hawaii

owns the legal title to the subject property in fee sim.

ple and that the private defendants have no legal inter

est. Therefore, the plaintiffs have not overcome the

sovereign immunity of officials in their official Capa-

city by seeking declaratory relief.

Even if plaintiffs had sought declaratory relief

against state officials in their official Capacity, it

appears that the suit would still be barred by the

Eleventh Amendment since the declaratory relief would

be primarily retroactive in nature. Declaratory relief

that is directed at a past violation of federal law

implicates the Eleventh Amendment if it would act like

a money judgment. Green v. Mansour, 106 S.Ct. 423,

428 (1985). The court must look beyond the labels at-

tached by the plaintiff and must determine whether the

declaration sought is primarily retrospective in nature.

In Papasan v. Allain, 106 S.Ct. 2932 (1986), the

State's sovereign immunity barred suit seeking replace

ment of lost trust corpus because such relief would, in

effect, award accrued monetary liability. School stu-

dents and officials sued the State of Mississippi for

breach of trust obligations by selling lands granted to

the State for the use of schools. The Court rejected the

argument that ihe sale of the land represented a contin

“* HM Y r

26a PRICE yg. §

—

ATE OF HAWAII

uing violation of federal law and held that ordering the

State to replace the trust corpus, even though nominally

injunctive and prospective, would have the same effect

aS monetary retrospective relief.

The instant case differs markedly from Papasan,

but many aspects of the declaratory relief sought by

plaintiffs are retrospective in nature. Plaintiffs here

more successfully assert a continuing violation of

federal law. Assuming plaintiffs allegations to be

true, the State has failed to exercise its power of entry

to terminate the determinable estate or has failed to

take possession after reversion. Since a grantor may

do so at any time within the limitations period, the

State continually fails to assert the rights of the trust.

The request for declaratory relief is largely retrospec-

tive in nature, however. because it seeks to establish a

basis upon which to recover monetary relief.

3. Claims Against State Officials in their

Individual Capacity.

Plaintiffs assert claims for monetary relief against

state officials in their individual Capacities. State

officials sued in their individual Capacities enjoy no

Eleventh Amendment immunity because they are not

cloaked with the sovereignty of the state. As such, the

complaint against them in tat Capacity cannot be dis

missed for a lack of jurisdiction.

The complaint nevertheless fails to state a § 1983

claim against the state officials in their individual

capacities. The court must look beyond the labels at

tached to the defendants and must consider whether

they actually face suit for actions taken outside their

official capacity. In two earlier cases involving the

same plaintiffs, this courthas dismissed claims against

state officials in their individual Capacities because the

complaint totally failed to allege acts taken in an ind;

vidual capacity. In Price v. Artyosht, Civil No. 85-1189

(D.Haw. February 23, 1987) (Fong, J.), the court dis

missed a complaint against state officials in their ind;

vidual capacities for failure to state a claim because 2

review of the complaint indicated that its allegations

were directed exclusively toward the defendants in

their official capacities. No allegation focused on any

acts or omissions in their individual capacities. Jd. at

8-9. Likewise in Price, etal. v. Akaka, et al.. Civil

No. 88-773 (D.Haw. January 11, 1989) (Ezra, J.), the

court dismissed a complaint against state officials that

sought to avoid sovereign immarjty by suing them in

their individual capacities. The court’s review of the

complaint revealed that the only reference to a suit

against defendants in their official (sic) Capac:ties was

plaintiffs’ prayer for “judgment against Defendants

jointly and severally.” Jd. at 11. Since all other

allegations refer only to acts performed in the defen

dants’ official capacity, the complaint failed to state a

claim against the state defendants in their individual

Capacities.

The complaint in the case now before the court sim

ilarly fails to allege any acts or omissions taken in the

state defendants’ individual capacities beyond simply

naming them as defendants anc seeking joint and sev-

eral liability. Plaintiffs only challenge acts and

omissions taken by the detendants in their administra.

tion of the § 5(f) trust fund. They performed those acts

and made those omissions within their Capacity as

state officers. Therefore, the complaint fails to state a

claim upon which relief can be granted to plaintiffs

against state defendants in their individual Capacities.

28a PRICE v. STATE OF HAWAII

The court must dismiss the complaint. Fed.R.Civ.P.

Rule 12(b)(6).

B. Existence of § 1983 Claim to Enforce § 5(f).

Defendants argue that § 5(f) creates no right in the

trust beneficiaries that is enforceable under § 1983.

Section 5(f} of the Admissions Act creates no indepen-

dent right of action; the United States may sue to en-

force the trust, but individual Hawaiians, including

native Hawaiians made beneficiaries under the trust,

have no private cause of action. Price J, 764 F.2d at

631; see Keaukaha-Panaewa Community Assn v. Ha-

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

cert.denied, 444 U.S. 826 (1979) (hereinafter

“Keaukaha I”).

Despite this limitation on § 5(f), that section of the

Admissions Act does create a federal “right” enforce-

able under 42 U.S.C. § 1983. Price J, 764 F.2d at 628,

citing Keaukaha-Panaewa Community Ass’n v. Hawat-

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

(hereinafter “Keaukaha II”). Section 5(f)’s trust

obligation is rooted in federal law, and the power to

enforce that obligation is contained in federal law.

Thus, precedent of the Court of Appeals for the Ninth

Circuit clearly recognizes this cause of action.

Il. PRIVATE DEFENDANTS’ MOTION

The private defendants, Honolulu Sailors’ Home

Society, HFSL Corp., Peter S. Smith, Glenn K.

Okada, and Honfed Bank, also bring a motion to

dismiss the § 1983 complaint against them or, in the

alternative, for summary judgment. They argue that

the complaint fails to state a § 1983 claim against them

as non-state actors. Lacking that federal claim, they

Appendix 29a

argue that this court has no subject matter jurisdiction

over them. Because the private defendants’ arguments

are correct, the claims against them must be dismissed.

A. Failure to State § 1983 Claim Against Non-State

Actors.

Private persons and organizations are not generally

acting under “color of law” and hence, are not ordinar-

ily subject to § 1983 actions. Although the legal land-

scape is not well-settled, it appears that a private

person or organization will be deemed to have acted

under color of law when it conspires with a public of-

ficial or acts in concert with such an official to deprive

a plaintiff of his or her constitutional or statutory

rights. As such, a private individual or entity has to

assume some sort of agency relationship with the state

to act under the color of state law required to impose

liability under § 1983.

Plaintiffs have clearly failed to plead facts that

would assert a § 1983 claim against the private defen-

dants. The complaint merely alleges that the private

defendants have attempted to acquire some kind oF in-

terest in the subject property. They have either acqui-

red rights to develop the land or have secured a loan by

perfecting a mortgage in the subject property as colla-

teral. These acts do not rise to the level of conspiracy

with public officials. They represent completely private

acts not taken under color of state law.

B. Lack of Subject-Matter Jurisdiction over Other

Claims.

Once the § 1983 claim against the private defendants

is dismissed, this court lacks subject-matter jurisdic-

tion to adjudicate claims against those defendants, re-

gardless of whether the federal claims against the

30a PRICE v. STATE OF HAWAII

state defendants survive the motion to dismiss. This

court lacks diversity jurisdiction because parties on

both sides are residents of the State of Hawaii or are

doing business here, destroying complete diversity. As

such, this court can only attempt to adjudicate this case

under its federal question jurisdiction. 28 U.S.C. §

1331 (1982).

Plaintiffs’ § 1983 claim provides the only basis for

federal question jurisdiction. The complaint seeks de-

claratory judgment pursuant to 28 U.S.C. § 2201

(1982), but that federal statute merely provides a type

of remedy; it provides no independent grounds for sub-

ject-matter jurisdiction where none already exists.

Likewise Federal Rule of Civil Procedure Rule 19

(providing joinder of necessary and _ indispensable

parties) does not provide an independent ground for

jurisdiction. In fact, that rule only allows such joinder

when it “will not deprive the court of jurisdiction over

the subject matter of the action.”

Plaintiffs’ attempt to enforce the § 5(f) trust created

by federal law does not “arise under” the laws of the

United States and, thus, does not establish federal

question jurisdiction. As already noted, § 5(f) provides

no independent cause of action. Under Justice Holmes’s

formulation, this fact would defeat federal question

jurisdiction since his formulation held that “[a] suit

arises under the law that creates the cause of action.”

American Well Works Co. v. Layne & Bowler Co., 241

U.S. 257, 260, 36 S.Ct. 585, 586 (1916). This simple

and comprehensible formulation, however, has not

found universal application.

The Court of Appeals for the Ninth Circuit has pro-

vided much guidance in Keaukaha 1, 588 F.2d 1216,

1224-27. In that case, the court was faced with the

Appendix 31a

issue of whether claims premised on the Hawaiian

Homes Commission Act, 42 Stat. 108, (which also

does not provide a private cause of action) arise under

the laws of the United States. After a careful review

of the unsettled and confusing body of law concerning

“arising under” jurisdiction, the Court of Appeals held

that such claims do not invoke federal question juris-

diction because the benefits under the Commission Act

had lost their federal nature. Upon admission of

Hawaii into the Union, the entire Commission Act

program was turned over the State of Hawaii and the

United States conveyed its interest in the home lands to

the state, which are not administered by state officrals.

The appellate court concluded that the Commission Act

and the rights and duties it created had become ele-

ments of Hawaiian state law. Jd. at 1226.

The reasoning in Keaukaha I guides this court's

evaluation of § 5(f) of the Admissions Act and leads to

the conclusion that a suit to enforce the trust does not

arise under the laws of the United States. Like those

under the Commission Act, the rights and benefits

under the Admissions Act have lost their federal

nature. Upon admission as a state, the lands involved

were conveyed to the State of Hawaii, and the State

began to administer those public lands and the trust in

which they were held. In fact, Congress authorized

the Hawaiian legislature to decide the manner in which

the § 5(f) lands, proceeds, and income must be managed

and disposed of. The Admissions Act and the Commis-

sion Act are sufficiently similar that the holding in

Keaukaha I applies to the instant case and compels the

finding that a suit to enforce § 5(f) of the Admissions

Act does not, in itself, arise under the laws of the

United States.

= |

a PRICE v. STATE OF HAWAII

Assuming that the claims against the state defen-

dants survived the motion to dismiss, the court would

sull lack subject-matter jurisdiction to adjudicate the

claims against the private defendants. Although the

state defendants would face federal claims, the private

defendants would face only state claims and would have

no independent ground for jurisdiction. This court’s

pendant jurisdiction could not pick up the claims against

the private defendants. Pendant jurisdiction is usually

invoked when a single defendant faces both federal and

State claims; the federal] court asserts jurisdiction

over the state claims in order to fully adjudicate a case

that has a federal] question. The doctrine of pendent jur-

isdiction allows a federal court to hear a nonfedera]

claim if it is Closely related to the federal claim

Generally the nonfederal and federal claims must “derive

from a common nucleus of operative fact” and be of

such a nature that a claimant “would ordinarily be

expected to try them all in one judicial proceeding.”

United Mine Workers v. Gibbs, 383 U.S. 715, 725. 86

S.Ct. 1130, 1138 (1966).

Courts typically assert pendent jurisdiction when a

single defendant faces both state and federal claims.

This case, however, presents the atypical situation of

"pendent parties” when there is a federal claim against

one party but no independent ground for jurisdiction over

a second party facing state claims which arise out of

the same nucleus of operative facts as the federal claim.

The Supreme Court of the United States appears to

disfavor the concept of asserting jurisdiction over

“pendent parties” but has not yet firmly determined its

validity. The court has. however, firmly determined

its invalidity when invoked to retain a county as a

defendant on the basis of a pending § 1983 claim wainst

" >|

Appendix 434

another defendant. Aldinger v. Howard, 427 US. 1, 96

S.Ct. 2413 (1976). The Court disallowed jurisdiction

over a pendant party only after it noted that, “[flor the

purposes of addressing the jurisdictional question in

this case .. . we think it quite unnecessary to formu

late any general, all-encompassing jurisdictional rule.”

Id., at 13, 96 S.Ct. at 2419. To this end, the Court

resolved the question of pendent-party jurisdiction by

looking to the statutory language creating the federal

cause of action in the particular case. The ability of the

Statute to permit pendent-party jurisdiction should be

construed in light of the scope of the cause of action

over which Congress has already extended federal

court jurisdiction. /d., at 17, 96 S.Ct. at 2421. I imiting

its holding to the Congressional purpose embodied in

28 U.S.C. § 1343(3) and 42 U.S.C. § 1983. the Court

held that a county facing state-law claims could not be

joined as a pendent party to a § 1983 action since

counties are excludable from the ~person{s]” in § 1343(3)

who can be held liable for constitutional deprivations.

[he Court rejected the notion that. despite the statute,

Congress left federal courts free to create a jurisdic-

tional doctrine enabling the courts to circumvent this

exclusion of counties when the civil] rights action and

the state law claim arise from the same core of opera

tive facts. Jd., at 16, 96 S.Ct. at 2421. Given the

purpose of § 1983, the courts are similarly not free to

circumvent the exclusion of private individuals or enti

ties when the civil rights action and state-law claim

arise out of a common nucleus of operative facts.

All claims against the private defendants fail. The

complaint fails to state a § 1983 claim against the pri

vate defendants because it lacks any allegation that the

private entity or individual was somehow working ae

34a PRICE v. STATE OF HAWAII

concert with the State or with some public official.

Once the § 1983 fails, any other claims against the

private defendants fall outside this court’s subject-

matter jurisdiction and must be dismissed under Rule

12(b)(1).

CONCLUSION

The court GRANTS both state defendants’ and pri-

vate defendants’ motions to dismiss the complaints

against them. The State of Hawaii and the state defen.

dants in their official capacity are immunized from this

suit by the Eleventh Amendment. The complaint fails to

State a claim against the state defendants in their

individual capacities. The complaint also fails to state

a § 1983 claim against the private defendants as non-

state actors and thus should be dismissed. Once that

claim falis out, the court lacks subject matter jurisdic-

tion over the claims against the private defendants. The

court need not reach the motions for summary judgment.

Because the court dismisses the complaint and ac-

tion against all parties, the court does not reach and

need not address the defendants’ motions in the alter.

native for summary judgment.

IT IS SO ORDERED

Dated: Honolulu, Hawaii, Dec. 7, 1989.

/s/ Harold M. Fong,

United States District Judge

A ppendix 35a

Nos. 90-151 17, 90-15863.

United States Court of Appeals

for the Ninth Circuit

Dr. Nui Loa PRICE. et a/.

Plainti ippe llants

STATE OF HAWAITL et al.

‘

De fend i771 ts-Appe ll 4.

Filed August 8, 1991

ORDER

Before: BEEZER, NOONAN and FERNANDEZ.

Circuit Judges.

The opinion filed in this case on July 11, 1991, is

amended as follows: at page 8733 of the slip opinion the

last line is amended to read: “AFFIRMED IN PART

and REVERSED IN PART.”

With the opinion thus amended. the panel |

unanimously voted to deny the petition f

1as

or rehearing.

The appellant’s petition for rehearing is denied

36a PRICE v. STATE OF HAWAITI

Nos. 90-15117, 90-15863.

United States Court of Appeals

for the Ninth C:r

Dr. Nui Loa PRICE. et a/.

STATE OF HAWAII, et ai.

Filed October 30, 199]

ORDER

Before: BEEZER, NOONAN and FERNANDEZ.

Circuit Judges.

The panel has unanimously voted to deny the petition

for rehearing filed by appellees, John Waihee, William

W. Paty, Herbert K. A paka, Jr., Moses W. Kealoha,

J. Douglas Ing, John Arisumi, and Herbert Arata,

which petition was styled “Appellee Hawaii Officials’

Petition for Rehearing.”

Therefore, the appellee Hawai Offic:

for rehearing is DENIED

petiti Nn

A ppendix 37a

JUDGMENT

United States Court of Appeals

for the Ninth Circuit

Nos. 90-15117

CT/AG#: CV-89-0561-HMF

Dr. Nui Loa PRICE, aka Maui Loa, individually and in

his capacity as chief of the Hou Hawaiians: The Hou

Hawaiians, a Native Hawaiian Ohana: and Kamuela

Price, individually, and In his capacity as member of

the elder council of the Hou Hawaiians.

Plaintiffs-Appellants,

STATE OF HAWAII William W. Paty, individually

and as Chairman of the Board of Land and Natural Re-

sources of the State of Hawaii: Herbert K. Apaka,

Jr.; Moses W. Kealoha: J. Douglas Ing; John Arisumi:

Herbert Arata, individually and as Members of the

Board of Land and Natural Resources of the State of

Hawaii; John Waihee, individually and as Governor of

the State of Hawaii; The Honolulu Sailors Home Soc ie-

ty, a Hawaii non-profit corporation; HFSL Corp., a

Hawai corporation, dba Harbor Associates: Peter S.

Smith, dba Smith Development Corp.; Glenn K. Oka-

da, dba G.K.O. Corp.; and HonFed Bank, a federal

Savings bank,

Detendants-Appellees.

Nos. 90-15863.

CT/AG#: CV-89-0561-HMI

Dr. Nui Loa PRICE, aka Maui Loa, individually and in

38a PRICE v. STATE OF HAWAII

his capacity as chief of the Hou Hawaiians; The Hou

Hawaiians, a Native Hawaiian Ohana; and Kamuela

Price, individually, and In his Capacity as member of

the elder council of the Hou Hawaiians,

Plaintiffs-Appellants,

STATE OF HAWAII, William W. Paty, individually

and as Chairman of the Board of I and and Natural Re

sources of the State of Hawaii; Herbert i. Apaka,

Jr.; Moses W. Kealoha: J. Douglas Ing; John Arisumi:

Herbert Arata, individually and as Members of the

Board of Land and Natural Resources of the State of

Hawai; John Waihee, individually and as Governor of

the State of Hawaii: The Honolulu Sailors Home Socie

ty, a Hawaii non-profit corporation; HFSL Corp., a

Hawaii corporation, dba Harbor Associates: Peter S.

Smith, dba Smith Development Corp.; Glenn K. Oka

da, dba G.K.O. Corp.; and HonFed Bank, a federal

Savings bank,

Defendants-Appellees.

APPEAL FROM the United States District Court

for the U.S. District Court for the District of Hawaii.

THIS CAUSE came on to be heard on _ the

Transcript of the Record from the United States

District Court for the U.S. District Court for the

District of Hawaii and was duly submitted.

ON CONSIDERATION WHER F( )F, It is now here

ordered and adjudged by this Court. that the judgement

of the said District Court in this cause be, and hereby

is AFFIRMED in part, REVERSED in part.

Filed and entered: 07/11/91

Amended: 09/18/91

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.