Opposition Brief — Pele Defense Fund v. Paty

“—“* KE oT o

No. 92-1112 } FEB 2 1993

coc OF THE CLERK

In The \

i te

Supreme Court of the United States

October Term, 1992

PELE DEFENSE FUND,

Petitioner,

WILLIAM PATY, in his capacity as Chairman of the

Board of Land and Natural Resources,

State of Hawaii, et al.,

Respondents.

Petition For Writ Of Certiorari

To The Supreme Court Of Hawaii

STATE OF HAWAII RESPONDENTS’ BRIEF

IN OPPOSITION

STEVEN S. MICHAELS

Deputy Attorney General

Appellate Division

Department of the

Attorney General

State of Hawaii

425 Queen Street

Honolulu, Hawaii 96813

(808) 586-1365

Rosert A. Marks

Attorney General

State of Hawaii

WituraM A. Tam*

Deputy Attorney General

Land/Transportation

Division

Department of the

Attorney General

State of Hawaii

465 South King Street

Honolulu, Hawaii 96813

(808) 587-2982

*Counsel of Record

Counsel for Respondents Chairman and Members,

Board of Land an

Natural Resources, State of Hawaii

(“State of Hawaii Respondents”)

QUESTIONS PRESENTED

1. Whether Petitioner, a party to a federal judgment

dismissing identical claims against the State officials here

because the federal suit sought retrospective relief, was

properly precluded in this state court action from

repleading (a) the federal equity claims dismissed in fed-

eral suit; and (b) state law claims, which in the judgment

of the state court, must fail because they also sought

similar retrospective relief?

2. Whether affirmance is independently mandated

by 28 U.S.C. § 1738 and the final judgment in Dedman v.

Board of Land and Natural Resources, 69 Haw. 255, 740 P.2d

28 (1987)?

3. Whether, independent of preclusion law, the defi-

nition of “person” as that term is used in 42 U.S.C. § 1983,

and other legal principles related to Hawaii's sovereign

immunity require affirmance of the judgment of the

Hawaii state courts below?

4. Whether Petitioner’s federal claims, which were

all filed more than two years after they accrued, were in

any event properly terminated on statute of limitations

grounds?

5. Whether, in light of Suter v. Artist M., 112 S.Ct.

1360 (1992), this Court would, if review were granted,

affirm the judgment in that 42 U.S.C. § 1983 does not

provide an enforcement vehicle for the federal statutory

claims in this case, or, in that the record plainly refutes

the contention that § 5(f) of the Hawaii Admission Act

has in any way been breached?

ii

TABLE OF CONTENTS

Page

CFE UMS FEN ES once ccvesnctnasseuscacees i

pe Bk 8) PTT ee eee ee i

SER Se FA CEU 0 0 hv sb Kiabewandicneonines ii

OPINIONS RELATED TO THE PETITION.......... 1

EG AT 6-6 6 iv 6s saan Uavunsduaa bak seek ike 2

EAR EEE GOW ERO GA ssc cccccuasnssvastueens 2

REASONS FOR DENYING THE WRIT............. 10

[NUE cA pce eereaveneaennebe mene ceen een 18

iii

TABLE OF AUTHORITIES

CAsEs:

Allen v. McCurry, 449 U.S. 90 (1980). ....-..---.-- ees 11

American Surety Co. v. Baldwin, 287 U.S. 691 (1932) .... 12

ASARCO, Inc. v. Kadish, 490 U.S. 605 (1989).....-. 2, 18

Au v. Au, 63 Haw. 210, 626 P.2d 173 (1981) ......--. 14

Bernhard v. Bank of America Nationwide Trust and

Savings Ass’n., 19 Cal.2d 807, 122 P.2d 892 (1942) .... 11

Blonder-Tongue Laboratories, Inc. v. University of IIli-

nois Foundation, 402 U.S. 313 (1971).........------ 12

Dedman v. Board of Land and Natural Resources, 69

Haw. 255, 740 P.2d 28 (1987), cert. denied, 485

Ne, 6G 5acensvncnednes 1, 2, 3, 9, 13

Del Percio v. Thornsley, 877 F.2d 785 (9th Cir. 1989) .... 14

Eichman v. Fotomat Corp., 871 F.2d 784 (9th Cir.

a et reer ee ee eee ee 15

Ex parte Young, 209 U.S. 123 (1908)......-.-+-+++++5: 12

Federated Department Stores, Inc. v. Moitie, 452 U.S.

EE cies case scnnscssccccecscerasessneecsres 13

Felder v. Casey, 437 U.S. 131 (1988).....-----+-- e+e 15

Higa v. Mirikitani, 55 Haw. 167, 517 P.2d 1 (1973)....14

I.N.S. v. Cardoza-Fonseca, 480 U.S. 421 (1987).......-- 15

In re Bishop Estate, 36 Haw. 403 (1943) ......-..-.+-- 11

iv

TABLE OF AUTHORITIES - Continued

Page(s)

In re CDUA, HA 85-1830 (Haw. BLNR Apr. 11,

Shela LES Gis WR ik SIN api So .

Keaukaha-Panaewa Community Ass‘n v. Hawaiian

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

(“Keaukaha I”) .........cccccsccccccscsccscecsseDy 15

Lujan v. Defenders of Wildlife, 112 S.Ct. 2130 (1992) ..... 2

Montana v. United States, 440 U.S. 147 (1978)........ 11

Morneau v. Stark Enterprises, Ltd., 56 Haw. 420, 539

. ££ BEE eT Tere Te cer Trees 11

Oberlander v. Perales, 740 F.2d 116 (2d Cir. 1984)..... 17

Owens v. Okure, 488 U.S. 235 (1989)....... 4, 10, 13, 14

Papasan v. Allain, 478 U.S. 265 (1986)......... 3, 4, 9, 13

Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979) .11, 12

Parsons Steel, Inc. v. First Alabama Bank, 474 U.S.

Ss cx ry hi sank ican uns Shenia ta cee son kano 11

Perez v. Seevers, 869 F.2d 425 (9th Cir. 1989)......... 14

Price v. Hawaii, 764 F.2d 625 (9th Cir. 1985) ....... 5, 14

Price v. Hawati, 939 F.2d 702 (9th Cir. 1991), cert.

a a er ae 14

Reefshare, Ltd. v. Nagata, 70 Haw. 93, 762 P.2d 169

errr reer Tee TE Te rer ree ere 17

RSE SAR REGS TIE AR SC ies REN 11

Suter v. Artist M., 112 S.Ct. 1360 (1992) ... 9, 15, 16, 17

Vv

TABLE OF AUTHORITIES - Continued

Page(s)

Trustees of the Office of Hawaiian Affairs v. Yamasaki,

69 Haw. 154, 737 P.2d 446, cert. denied, 484 U.S.

OFS CIPO < ooo csncvovsvecesetcceweveur tel eee 5

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

Underwriters Assur. Co. v. North Carolina Life &

Accident Insurance Guaranty Ass’n, 455 U.S. 691

(GOOD ono ins'nccsscvms sdacesecda ile ee 12

Utah Division of State Lands v. United States, 482

US. 48 008)... scccscan eee 16 F

Will v. Michigan, 491 U.S. 58 (1989) ........... 3,9, 12

CONSTITUTIONS, STATUTES AND LEGISLATION:

BIOVORER ARIIREINOOE: . occa ok scs. es eee 3

Oe Ws Fe 5a i ohne a tanks rayee ei ee eee 2

Oe Sa EE BA 5A 5x0 inh sok kb 2

Oe Shieas eS oo ven v4 5d ¥R8as9 Ree ee passim

ee ee eM Oe ae ie 10

Geothermal Development Act.....................0.. 6

Hawaii Admission Act § 5(f), Pub. L. 86-3, 73 Stat.

© Ge Fh OE ob kno bons Cenwis Seseeuweeces passim

Pub. L. No. 99-564, 100 Stat. 3179 (1986).......... 8, 17

H.R. Rep. No. 99-971, 99th Cong., 2d Sess. (Oct. 7,

i EEE OT eT PE Tee Tey Te rer eee ON eT aeed Une nts 17

Hawaiian Homes Commission Act, 1920.............. 4

ee

vi

TABLE OF AUTHORITIES - Continued

Page(s)

Natural Area Reserves System Act (“NARS”)......... 6

New Mexico-Arizona Enabling Act, 36 Stat. 557

SS UKKE a) chun code ee dhe eee nes Chk ERR REE ake x6 16

The Organic Act of April 30, 1900, 31 Stat. 141

(SOR OrTT e rr rr rye err ee reer reer ye Te 4

Haw. Rev. Stat. § 171-11 1 AO per ere rr ore 5

Haw. Rev. Stat. § 171-50(b) (1985).................. 5, 6

Haw. Rev. Stat. & 171-S0ic) CI9GS) ... neces cccccvvess 6

PE, TT, ORs BS Ee CEs oie c nce scctscccuesoece 6

ow rere sera 6

Haw. Bev. Stat. § 195-0(2Z) (1965) ...... 0. cnccssvvecess 6

Haw. Rev. Stat. § 195-10 (Supp. 1992)................ 6

ee ee ES. | 6

Pimwe. Tey. Stat. & BOS-S.2 CIGGS). os caine cece vccccvace 6

Haw. Rev. Stat. § 205-5.2(b)(4) (1985)...............048. 6

Se See, COs Th ONE i teens canes cvavesscsnses 1, 14

Haw. Rev. Stat. § 657-7 (1965). ................ 4, 10, 14

Haw. Sen. Con. Res. No. 85-30 (Apr. 9, 1985) ........ 7

Joint Resolution to Provide for Annexing the

Hawaiian Islands, 30 Stat. 750 (1898) .............. 4

Court RULE:

EE eee la a uh Ube be eCATEK TLD CARRE RRR een an 18

No. 92-1112

e

In The

Supreme Court of the United States

October Term, 1992

+

PELE DEFENSE FUND,

Petitioner,

Vs.

WILLIAM PATY, in his capacity as Chairman of the

Board of Land and Natural Resources,

State of Hawaii, et all.,

Respondents.

¢

Petition For Writ Of Certiorari

To The Supreme Court Of Hawaii

¢

STATE OF HAWAII RESPONDENTS’ BRIEF

IN OPPOSITION

¢

OPINIONS RELATED TO THE PETITION

In addition to those cited in the Petition, the opinions

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

v. Board of Land and Natural Resources, 69 Haw. 255, 740

P.2d 28 (1987), cert. denied, 485 U.S. 1020 (1988), as well as

the unpublished orders below therein, are related to this

Petition.

JURISDICTION

The Petition seeks to nullify the December 23, 1985

exchange deed between the State of Hawaii and the

Estate of James Campbell, in which the State conveyed

the surface rights to 27,786 acres of land which had been

returned to Hawaii by its Admission Act, Pub. L. 86-3, 73

Stat. 4 (Mar. 18, 1959).

The Hawaii Supreme Court denied Petitioner this

relief. Because the alternative relief held open by the

Supreme Court of Hawaii on remand, which would run

solely against the private respondents, would not appear

to moot entirely the Petitioner’s prayer, the judgment

below appears to be final. In addition, it would appear

that Petitioner has Article III standing on the same basis

as existed in ASARCO, Inc. v. Kadish, 490 U.S. 605, 617-24

(1989), though Petitioner, we submit, would not have

standing in federal district court in an original suit. See

Lujan v. Defenders of Wildlife, 112 S. Ct. 2130, 2137 (1992).

The substantial jurisdictional defects in the Petition

lay mainly under the scope of 42 U.S.C. § 1983 and the

mandates Petitioner or its privies ignored in failing to

seek review earlier in Ulaleo, and Dedman. See 28 U.S.C.

§§ 1254, 1257.

STATEMENT OF THE CASE

This is essentially the third federal appeal in which

the Pele Defense Fund or its privies have sought to

undermine the foundational transaction for efforts to

develop geothermal energy in our State. In this transac-

tion, the State of Hawaii exchanged roughly 27,800 acres

of public “ceded” lands conveyed to the State of Hawaii

under § 5 of its Admission Act for 25,800 acres of private

fee simple land located adjacent to the environmentally

and culturally sensitive Hawaii Volcanoes National Park

on the Big Island of Hawaii. Nearly five years ago, this

Court denied review in the first appeal, Dedman v. Board

of Land and Natural Resources, 485 U.S. 1020 (U.S. cert.

denied Apr. 25, 1988), which had presented to this Court

as the sole question for review whether the development

of the lands granted to Campbell Estate violated Peti-

tioner’s privies’ rights under the First Amendment. In the

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

which Petitioner was a party, Pele Defense Fund did not

seek review here of the Ninth Circuit decision dismissing

all its claims against the state parties on the basis of the

Eleventh Amendment and the principles set forth by this

Court in Papasan v. Allain, 478 U.S. 265 (1986). Ulaleo, like

the instant suit, sought redress for alleged “breach of

trust” cognizable under § 5(f) and 42 U.S.C. § 1983.

In the judgment below in this action, the Supreme

Court of Hawaii concluded that, taken together with this

Court’s decision in Will v. Michigan, 491 U.S. 58 (1989),

the judgment in Ulaleo precluded Petitioner’s companion

state court claims for “breach of trust” under 42 U.S.C.

§ 1983. Construing Hawaii’s own law of sovereign immu-

nity as imposing the same “prospective/retrospective”

distinction that exists under Eleventh Amendment doc-

trine, the Hawaii Supreme Court also barred Petitioner’s

related state law claims. The court below concluded inde-

pendently that the suit here sought retrospective relief of

the kind barred in Papasan v. Allain, 478 U.S. 265 (1986),

and, thus, the claims raised here could not proceed.

In addition, the Hawaii Supreme Court, following the

mandate of Owens v. Okure, 488 U.S. 235 (1989), deter-

mined that the Petitioner’s federal claims were barred by

the two-year residual limitations period for personal

injury actions set forth at Haw. Rev. Stat. § 657-7 (1985).

The court did not pass on a host of additional grounds for

affirming the judgment of the state trial court, which had

dismissed all claims for relief.

Whether the fact-bound judgment of the court below

should be subject to further review here is the issue on

this Petition.

1. The lands at issue in this suit were originally

ceded by the Republic of Hawaii to the United States

upon annexation of Hawaii in 1898, and were returned to

the new State of Hawaii upon its admission to the Union

in 1959, pursuant to § 5 of the Admission Act, Pub. L. No.

86-3, 73 Stat. 4, 6 (1959). See also the Joint Resolution to

Provide for Annexing the Hawaiian Islands, 30 Stat. 750

(1898), and the Organic Act, Act of April 30, 1900, 31 Stat.

141 (1900). Under § 5(f), these “ceded” lands were

granted to Hawaii in fee for disposition for “one or more”

of five purposes: (1) “support of the public schools and

other public educational institutions”; (2) “betterment of

the conditions of native Hawaiians, as defined in the

Hawaiian Homes Commission Act, 1920, as amended”;

(3) “development of farm and home ownership on as

widespread a basis as possible”; (4) “making of public

improvements”; and (5) “provision of lands for public

use.” Congress stated that failure to manage or dispose of

the lands subject to § 5(f) “for one or more of the forego-

ing purposes in such manner as the constitution and laws

of [Hawaii] may provide” would be “a breach of trust for

which suit may be brought by the United States.” 73 Stat.

at 6. The history of § 5(f) is barren of “any indication that

Congress intended to create a private cause of action via

the Admission Act,” and, “by providing a specific rem-

edy, Congress intended to exclude others.” Keaukaha-Pan-

aewa Community Ass'n v. Hawaiian Homes Commission, 588

F.2d 1216, 1223 (9th Cir. 1978) (“Keaukaha I”); but see Price

v. Hawaii, 939 F.2d 702 (9th Cir. 1991)), cert. denied, 112 S.

Ct. 1479 (1992). As a general matter, § 5(f) “broadly

allows the State to expend trust funds on ‘one or more’ of

[the] five statutory purposes.” Price v. Hawaii, 764 F.2d

625, 630 (9th Cir. 1985). Moreover, state constitutiona!

provisions Hawaii has enacted to implement § 5(f), pro-

vide, in and of themselves, “no ‘judicially discoverable

and manageable standards,’ ” for allocating trust assets to

native Hawaiian beneficiaries of the 5(f) trust. Trustees of

the Office of Hawaiian Affairs v. Yamasaki, 69 Haw. 154, 175,

737 P.2d 446, 457, cert. denied, 484 U.S. 898 (1987).

2. Atall times relevant to this suit, Hawaii's general

statutes governing public lands reaffirmed the discretion

to sell or exchange public trust land. The State Board of

Land and Natural Resources, assigned principal jurisdic-

tion over the ceded lands, may dispose of “real property-

... less than the fee” without executive order, and may

exchange public for private land for any “public pur-

pose” without public auction. See Haw. Rev. Stat.

§§ 171-11, 171-50(b) (1985). Public law mandates public

notice for such land exchanges and grants the Legislature

a one-session opportunity to disapprove of the exchange

by two-thirds vote for any reasons the Legislature might

find appropriate. Id. § 171-50(c). The law states that “no

exchange shall be made should public land exceed 120

per cent of the value of the private land,” but grants the

Board broad discretion to decide how value is to be

computed so long as “a disinterested qualified appraiser”

concurs. Id. § 171-50(b). Parts of the public lands at issue

here were subject to the Natural Area Reserves System

Act (“NARS”), a state law that, in the relevant time

period, provided a means for including land in a

“reserves system,” but contained no express limitations

on alienation of “system land.” See Haw. Rev. Stat.

§§ 195-3, 195-4(1)-(2) (1985). Standards for alienating

“NARS” lands were not enacted until 1987. See id.

§ 195-10 (Supp. 1992). The lands at issue were also sub-

ject, during the relevant time frame, to the Geothermal

Development Act, which granted the Board power to

designate “geothermal resource subzones” in those areas

that best show an acceptable balance of seven factors for

development of geothermal energy, including “[s]ocial

and environmental impacts,” Haw. Rev. Stat. § 205-

5.2(b){4) (1985). During the events here, the law required

notice of the Board’s preliminary findings, and trial-type

agency review, with direct review in the Hawaii Supreme

Court, of any protests to proposed geothermal develop-

ment. Id. §§ 205-5.1-5.2.

3. In 1985, the Board, with support from the Hawaii

legislature, invited the Campbell Estate to exchange cer-

tain of its private lands for public lands located in the

Kilauea Middle East Rift Zone (“KMERZ”), which

included the Wao Kele ‘O Puna Natural Reserve. The

Campbell Estate lands, located closer to Volcanoes

National Park, could not be as easily developed for geo-

thermal energy due to their close proximity to ongoing

volcanic activity, and, in any event, coniained pristine

Ohia rainforest, sheltering nine threatened or endangered

species. By contrast, the lower elevation and ecologically

disturbed KMERZ lands were farther removed from Vol-

canoes National Park and from visible volcanic mani-

festations of the Hawaiian goddess Pele, which are both

culturally and spiritually significant to practitioners of

native Hawaiian religion. See Haw. Sen. Con. Res. No.

85-30 (Apr. 9, 1985).

4. On September 30, 1985, the State’s appraiser

issued his report, recommending an exchange provided

that an $83,000 shortfall in value to the 5(f) trust could be

made up by the Estate. In addition, it was recommended

to the Board that any removal of the Wao Kele ‘O Puna

reserve lands from the NARS be accompanied by creation

of a new reserve of similar size on the Campbell lands.

This was done. The proposed proprietary boundaries

were also modified to equalize the value of the land

exchanged, and public notice of the exchange, as required

by law, was given prior to execution of the exchange

deeds on December 23, 1985. Under its deed, the State

retains subsurface rights to the KMERZ parcel, including

all rights arising from the land’s geothermal potential; the

State thus netted clear title to 25,800 acres of geothermal

rights, whereas Campbell retained nothing from its origi-

nal parcel. The lands received from Campbell also had

more than 1600 more acres zoned for - and amenable to -

profitable agricultural uses than the lands the State

traded away. Under state law, moreover, the traditional

rights of “native tenants” ran to and burdened the lands

transferred by Hawaii to the Estate.

5. Petitioner’s privies participated in administrative

trial-type hearings over the zoning of this exchanged land

during the period in which the legislature considered

vetoing the exchange. Permits by which Campbell was

authorized to use the lands for geothermal development

were granted by the Board on April 11, 1986, only after

Palikapu Dedman and Dr. Noa Emmett Aluli, the princi-

pal officers of appellant Pele Defense Fund, filed exten-

sive papers opposing the enabling authorizations. In

those papers, Pele Defense Fund’s principals broadly

challenged the grant of authority to the Estate to develop

geothermal energy as violative of § 5(f) of the Admission

Act, in that “the religious interests of Native Hawaiians

will be violated”; “the value of the tracts exchanged are

not equal”; “hunting, gathering, and other subsistence

rights of Native Hawaiians in the lands conveyed to

Campbell Estate will be impaired or lost entirely”; and

“the total land area subject to the trust . . . will ultimately

be diminished.” In its Decision and Order, the Board

expressly determined, however, that the Estate was prop-

erly “the landowner” of the lands in question, subject

only to the Legislature’s right to disapproval. See In re

CDUA, HA 85-1830 (Haw. BLNR Apr. 11, 1986) at 6, 10.

On April 23, 1986, the Legislature let the deadline for

disapproval pass without action. Shortly thereafter, the

Congress approved legislation authorizing transfer of

5,650 acres of the formerly-Campbell land (now in the

State) to the United States, in order to consolidate and

protect the environmentally sensitive lands in and around

the Volcanoes National Park. Pub. L. No. 99-564, 100 Stat.

3179 (1986). In 1987, the state Supreme Court affirmed the

permits granted to Campbell, rejecting the claim that title

was wrongly conveyed. Dedman, supra. This Court denied

review. See id.

6. In 1990, the Ninth Circuit affirmed the federal

district court’s dismissal of Pele Defense Fund’s suit seek-

ing to void the exchange pursuant to § 5(f) and various

arguments that the exchange violated state law. Ulaleo,

supra. Applying this Court’s decision in Papasan v. Allain,

478 U.S. 265 (1986), the Ninth Circuit viewed the com-

plaint in Ulaleo as stating that “sometime in the past, the

BLNR undertook an action, the land exchange, which

allegedly injured the plaintiffs by violating the trust of

which the plaintiffs are beneficiaries.” 902 F.2d at 1400.

Because this essential claim provided “no allegation that

the Board is continuing to violate its trust duties in other

ways or that it is likely to do sé in the future,” and as

reversal of the exchange “would require the state to pur-

chase the lands from its present holder by way of cash or

other land,” the court held that the Eleventh Amendment

was a bar to suit.

7. In 1992, in this suit, the Supreme Court of Hawaii

affirmed the state court companion to Ulaleo. Over

Respondents’ objection that this Court’s decision in Suter

v. Artist M., 112 S. Ct. 1360 (1992), counseled against

reading § 5(f) to be enforceable under the “and laws”

language of 42 U.S.C. § 1983, the state court cited with

approval to Ninth Circuit decisions that had held to the

contrary, and found that “standing” was present for state

law purposes. Pet. App. 19a-24a. These rulings were

reduced to dicta, however, by the Hawaii Supreme

Court’s conclusions (1) that Ulaleo was issue-preclusive,

for purposes of determining whether the bar on retro-

spective relief, applicable in state court under Will v.

10

Michigan, 491 U.S. 58 (1989), was operative (Pet. App.

29a-31a); (2) that preclusive effect also ran to Petitioner’s

state-law-based causes of action, in that Respondents

were sued only in their official capacity, and Hawaii law

recognizes the “prospective/retrospective” distinction

which forms the basis for this Court’s Eleventh Amend-

ment precepts (id. at 38a-44a); (4) the exception for “pro-

spective” relief applied independently of Ulaleo (id. at

43a-45a); and (5) Plaintiffs’ federal causes of action, filed

on March 10, 1989, nearly three years after the legislature

had refused to disturb the land exchange with the Estate,

were held independently barred by the two year residual

personal injury statute of limitations, Haw. Rev. Stat.

§ 657-7 (1985), enforceable by 42 U.S.C. § 1988 and Owens

v. Okure, 488 U.S. 235 (1989) (Pet. App. at 24a-28a).

Because the state parties were properly dismissed, relief

voiding the exchange could not be had against the private

parties (Pet. App. 47a), but Petitioner would be afforded

an additional opportunity on remand to demonstrate that

the “native tenants” rights adhering under Hawaii law

permit at least some of its members “to enter the unde-

veloped areas of the exchanged lands to exercise their

traditional practices” (id. at 57a).

?

REASONS FOR DENYING THE WRIT

The decision of the Hawaii Supreme Court in this

fact-bound case presents no issue warranting this Court’s

further review.

1. Petitioner’s claim that the Hawaii Supreme Court

improperly “purported to apply state preclusion rules” in

11

determining the effect of the Ulaleo judgment (Pet. at 6)

not only misstates the holding below, but does nothing to

show even error in the judgment, let alone an error that

merits deployment of this Court’s resources. While it

goes without saying that the preclusive effect of the

Ulaleo judgment is a federal issue, see, e.g., Parsons Steel,

Inc. v. First Alabama Bank, 474 U.S. 518, 525 (1986), the

mere fact that the state court cited several of its own cases

on the matter of collateral estoppel shows no disrespect

to the federal nature of the issue before it. Indeed, both

the Hawaii Supreme Court, and this Court, in reviewing

the scope of federal judgments, have relied on the same

sources for decades. In re Bishop Estate, 36 Haw. 403

(1943), on which the state court expressly relied below,

for example, draws its analysis from Southern Pacific Rail-

road v. United States, 168 U.S. 1 (1897). See 36 Haw. at 417

(quoting Southern Pacific). Morneau v. Stark Enterprises,

Ltd., 56 Haw. 420, 539 P.2d 472 (1975), also quoted by the

state court below, likewise relies, as has this Court, on

Justice Traynor’s instructive opinion for the California

Supreme Court in Bernhard v. Bank of America Nationwide

Trust and Savings Ass‘n., 19 Cal. 2d 807, 122 P.2d 892

(1942). Compare Morneau, 56 Haw. at 423-24, 539 P.2d at

474-75 (quoting Berhnard), with Parklane Hosiery Co. v.

Shore, 439 U.S. 322, 329 (1979) (same). Nor can the Hawaii

court’s mere citation to Allen v. McCurry, 449 U.S. 90

(1980), indicate disrespect for federal law. Indeed, the

very portion of the Allen case cited by the Hawaii

Supreme Court itself referred to principles of preclusion

law drawn from cases involving federal judgments. See

449 U.S. at 95 (citing Montana v. United States, 440 US.

12

147, 153 (1978); Blonder-Tongue Laboratories, Inc. v. Univer-

sity of Illinois Foundation, 402 U.S. 313, 328-29 (1971)).

There is no disharmony between the judgment below and

the “federal interests” underlying federal judgments.

2. Nor, as Petitioner asserts, did the state court mis-

apply federal preclusion law. Although such a mere error

would not warrant certiorari in any event, the Hawaii

Supreme Court’s ruling below fits well within established

doctrine which prohibits the relitigation of jurisdictional

facts in a later proceeding even “upon a different cause of

action.” Parkland Hosiery Co. v. Shore, 439 U.S. at 326 n.5. It

is well-settled “that ‘[t]he principles of res judicata apply

to questions of jurisdiction as well as to other issues.’ ”

Underwriters Assur. Co. v. North Carolina Life & Accident &

Health Insurance Guaranty Ass‘n, 455 U.S. 691, 706 (1982)

(quoting American Surety Co. v. Baldwin, 287 U.S. 156, 166

(1932)). Plainly whether the claims asserted in Ulaleo

sought “retrospective” relief was put in issue and

decided in that case adversely to Petitioner, and nothing

in the Petition in any way indicates that the claims below

were in any material sense different than those in Ulaleo.

Accordingly, it was wholly proper for the state court to

deem both Petitioner’s federal and state claims (the latter

of which, under rules of law recognized by Hawaii courts

for decades, see Pet. App. 41a, were properly held to be

subject to the same sovereign immunity limitations as set

forth in Ex parte Young, 209 U.S. 123 (1908)), barred by the

unappealed judgment in Ulaleo. In Will v. Michigan, 491

U.S. 58 (1989), this Court made clear that suits for retro-

spective relief against state officers sued in their official

capacities are not against a “person” for purposes of 42

13

—

U.S.C. § 1983. Thus, Ulaleo ended the action below. Peti-

tioner’s policy arguments urging a different result (See

Pet. at 9-10) simply take issue with the salutary doctrine

of collateral estoppel, a rule that reflects the “ ‘[p]ublic

policy ... that there be an end of litigation,’ ” and “ ‘that

those who have contested an issue shall be bound by the

result of the contest.’ ” Federated Department Stores, Inc. v.

Moitie, 452 U.S. 394, 401 (1981). And, because collateral

estoppel infects each of Petitioner’s claims here, the

entirety of the judgment in favor of Respondents is cor-

rect, and review should be denied.

3. Even if Ulaleo did not exist, however, the same

result would obtain. Petitioner does not anywhere dem-

onstrate error even in the Ninth Circuit’s determination

in Ulaleo that the claims seeking to undo the land

exchange, either directly or indirectly, were anything but

a prayer for “return of the trust corpus itself.” Papasan,

478 U.S. at 281. Indeed, as Respondents argued below,

Petitioner’s privies had the opportunity to litigate the

legality of the land exchange in the Dedman proceeding

yet lost on or waived their present issues there. If there

was any misapplication of the law of preclusion, it was

that by the courts below which did not end this case on

the basis of the final decision in Dedman nearly six years

ago.

4. Petitioner has, in any event, no good argument

that the Hawaii Supreme Court wrongly found, indepen-

dently, that the statute of limitations had run on the

federal claims below. Indeed, Petitioner, urging that a

State’s general “residual statute of limitations” should

apply “when a state has multiple personal injury statutes

of limitations,” Pet. at 11, misstates the holding of Owens

a i

14

v. Okure, 488 U.S. 235 (1988). That case holds that “where

the state law provides multiple statutes of limitations for

personal injury actions, courts considering § 1983 claims

should borrow the general or residual statute for personal

injury actions.” Id. at 250. Petitioner, as it did below,

wrongly confuses personal actions, covered by the six-

year statute set forth in Haw. Rev. Stat. § 657-1(4), with

personal injury actions, which are generally governed by a

two-year period. see Haw. Rev. Stat. § 657-7 (1985). The

lower courts have properly rejected Petitioner’s conten-

tion as seeking to impose a State’s general “catch-all”

limitations period when this Court has directed adoption

of “the general or residual statute for personal injury

actions.” See Del Percio v. Thornsley, 877 F.2d 785, 786 (9th

Cir. 1989); Perez v. Seevers, 869 F.2d 425 (9th Cir. 1989).

Indeed, the Ninth Circuit is in direct agreement with the

Hawaii Supreme Court that the two-year period applies

to § 1983 suits. See Price v. Hawaii, 939 F.2d 702, 708 n.7

(1991). This case presents no justification for overturning

these well-reasoned precedents.

5. Petitioner’s reliance on cases from Hawaii allow-

ing suit within six years for legal malpractice, Higa v.

Miritkitani, 55 Haw. 167, 517 P.2d 1 (1973), or fraudulent

inducement, Au v. Au, 63 Haw. 210, 626 P.2d 173 (1981), is

unresponsive to Owens, for neither Higa nor Au were

“tort” cases in the strict sense. The cause of action in Higa

was deemed an “amalgam of both tort and contract,” 55

Haw. at 172, 517 P.2d at 5, while Au observed it was

“ambiguous” whether a claim for fraudulent inducement

was a person injury claim at all. See 63 Haw. 263, 264

(1981) (on petition for rehearing). Nowhere has the

Supreme Court of Hawaii suggested that Haw. Rev. Stat.

se

15

§ 657-7 is not the “residual or general personal injury

statute.” The judgment here therefore does not warrant

any further review. This case does not present any situa-

tion, as in Felder v. Casey, 437 U.S. 131 (1988), where a too-

short limitations period is deemed inconsistent with fed-

eral policy. Indeed, Petitioner’s argument that the two-

year statute might not be applicable in state court even

when it is the proper statute for claims in the federal

courts turns the notion of preemption upside down.

6. Nor is the “accrual” issue identified by Petitioner

a proper candidate for certiorari. This issue was not prop-

erly raised below, and, in any event is of no merit. As the

Ninth Circuit has observed in rejecting similar claims of

“ongoing injury,” the “passive receipt of [benefits] from

an illegal contract” “is not an overt act of enforcement

which will restart the statute of limitations.” Eichman v.

Fotomat Corp., 871 F.2d 784, 794 (9th Cir. 1989). The claims

in this case were all ripe at the very latest when the

Legislature refused to intervene and stop the land

exchange, if not before. Cf. I.N.S. v. Cardoza-Fonseca, 480

U.S. 421, 427 n.3 (1987) (claim is ripe even though Legis-

lature has the authority to moot question). The two-year

statute had long run when this suit was filed.

7. In addition to the foregoing, the State of Hawaii

respondents contend that, under the reasoning of this

court’s recent decision in Suter v. Artist M., 112 S. Ct. 1360

(1992), § 5(f) of the Admission Act is not enforceable

under 42 U.S.C. § 1983. Because it is undisputed that ~

§ 5(f) does not itself provide for a private right of action,

see Keaukaha I, supra, the issues raised by Petitioner might

well never be reached by this Court, in that it would be

this Court’s prerogative to affirm, at least with respect to

16

Pele Defense Fund’s federal claim, on the ground that

Petitioner has no federal cause of action at all. Suter

makes quite clear that in cases where federal assets are

returned to the States, the creation of “enforceable rights”

under § 1983 must be done “unambiguously” in the stat-

ute at issue. See 112 S. Ct. at 1367. In this context partic-

ularly, in which the federal act brings Hawaii into the

Union “on an equal footing” with our sister States, it

would be doubly surprising if Congress were to be

deemed to have created privately enforceable rights. As

this Court emphasized in Utah Division of State Lands v.

United States, 482 U.S. 193 (1987), when it has come to

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

admission to the Union, “the strong presumption is

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

thus, a court “cannot infer that Congress intended to

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

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

201-02. Here, in contrast to other Admission Acts,

Hawaii's Act does not declare transactions in violation

thereof to be “null and void.” Cf. the New Mexico-Ari-

zona Enabling Act, 36 Stat. 557, 574 (1910). Rather, the

remedy provided by the act is a suit for appropriate relief

by the United States. That remedy, of course, might not

itself “foreclose remedies under § 1983,” but it does show

“that the absence of a remdy to private plaintiffs under

§ 1983 does not make [§ 5(f)] a dead letter.” Suter, 112 S.

Ct. at 1369. Moreover, it is particularly inappropriate to

imply a § 1983 remedy in the circumstances of this case,

for every one of Petitioner’s “federal” claims depends not

on the “one or more” provisions of § 5(f) in a general

17

sense, but rather on the idea that Hawaii allegedly vio-

lated state law which is merely (and as to after-enacted

law only arguably) referenced in § 5(f). Even if the idea

had merit, “there is no authority anywhere supporting

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

merely by virtue of its inclusipn in a state plan required

by federal law.” Oberlander pay sion 740 F.2d 116, 119 (2d

Cir. 1984). Here, as in Suter, the federal act does no more

than require satisfying the United States. See Suter, supra,

112 S. Ct. at 1369. Thus, rather than enforcing Congress’s

intent, implying a § 1983 remedy defeats the discretion

vested in the United States not to sue.

8. Finally, this case is particularly inappropriate for

review here in that Petitioner never presented any evi-

dence below to show that § 5(f) had been violated even

on its own theory. Indeed the only issue of state law

which the Hawaii Supreme Court found at all substantial

was whether the withdrawal of the Wao Kele O’ Puna

natural area reserve was authorized by state law. See Pet.

App. 45a. However, that issue is properly resolved by the

proposition that “repeals by implication are not favored.”

Reefshare, Ltd. v. Nagata, 70 Haw 93, 97, 762 P.2d 169, 172

(1988). Chapter 195, Haw. Rev. Stat., did not repeal the

general discretion to dispose of 5(f) trust lands, conferred

elsewhere by Hawaii law, discretion which is contem-

plated in § 5(f) itself. Indeed, Petitioner’s efforts to undo

the land exchange would run counter to Pub. L. No.

99-564, which recognized that “[t]he State of Hawaii now

holds title to Tract 22 [the lands located near the National

Park], having acquired the tract [from Campbell Estate].”

H. Rep. No. 99-971, 99th Cong., 2d Sess. (Oct. 7, 1986).

Hawaii obviously could not have acquired the Campbell

~

18

lands if it did not have authority to exchange the Wao

Kele O’ Puna reserve. Indeed, Congress’s ratification of

the exchange quite arguably constitutes a “relax[ation of]

the conditions upon which lands had been granted previ-

ously [by § 5 of the Admission Act].” ASARCO, Inc. v.

Kadish, 490 U.S. 605, 632 (1989). In light of this fact, it is

not at all likely that this Court could even reach Peti-

tioner’s issues. See Rule 15.1.

¢

CONCLUSION

For the foregoing reasons, certiorari should be

denied.

Dated: Honolulu, Hawaii, February 2, 1993.

Respectfully submitted,

Rosert A. Marks

Attorney General

State of Hawaii

STEVEN S. MICHAELS WituiaM A. Tam*

Deputy Attorney General Deputy Attorney General

Appellate Division Land/Transportation

Department of the Division

Attorney General Department of the

State of Hawaiii Attorney General

425 Queen Street State of Hawaii

Honolulu, Hawaii 96813 465 South King Street

(808) 586-1365 Honolulu, Hawaii 96813

(808) 587-2982

*Counsel of Record

Counsel for Respondents Chairman and Members,

Board of Land and Natural Resources, States of Hawaii

(“State of Hawaii Respondents”)