Petition for Writ of Certiorari — Hawaiian Homes Commission v. Aged Hawaiians

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Court, U.S.

Tey ED

No. 94-_Q42036 Jun j 2 1995

QEEICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1994

HAWAIIAN HOMES COMMISSION; KALI WATSON, in his

capacity as Chairman of the Hawaiian Homes Commission;

WANDA MAE AGPALSA, ANDREW APANA, NANI

BRANDT, ROCKNE FREITAS, DENNIS KAUAHI,

LLEWELYN KUMALAE, ANN NATHANIEL, PATRICIA

SHEEHAN, in their capacities as members of the Hawaiian

Homes Commission; and THE DEPARTMENT OF HAWAIIAN

HOME LANDS OF THE STATE OF HAWAIL

Petitioners,

Vs.

THE AGED HAWAIIANS, an unincorporated association,

Respondents.

On Petition For Writ Of Certiorari To The

Supreme Court Of The State Of Hawaii

PETITION FOR WRIT OF CERTIORARI

Marcery S. BRONSTER

Attorney General

State of Hawaii

STEVEN Scotr MiIcHaELs*

First Deputy Attorney General

State of Hawaii

"Counsel of Record

CHARLEEN M. AINA

Gmarp D. Lau

Deputy Attorneys General

State of Hawaii

425 Queen Street

Honolulu, Hawaii 96813

(808) 586-1292

Counsel for Petitioners

Hawaiian Homes Commission, et al.

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

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

The Hawaiian Homes Commission Act, 42 Stat. 108

(July 9, 1921), as amended, and whose administration was

transferred to the State of Hawaii by the Hawaii Admis- -

sion Act, 73 Stat. 4 (Mar. 18, 1959), creates a homesteading

program for the benefit of those individuals of at least

one half indigenous-Hawaiian ancestry, as well as certain

of their descendants. The homesteading program created

by the Act is the oldest and largest program in the United

States exclusively benefiting native Americans in the

State of Hawaii. The questions presented are:

1. Whether the Hawaiian Homes Commission Act

grants native Hawaiian beneficiaries of that Act a right

“to be placed on the land to the fullest extent possible,”

and, if so, whether that right is properly classified as

“property” for purposes of the Due Process Clause of the

Fourteenth Amendment?

2. Whether, given the close connection between the

“property interest” issue in this case and the “liberty

interest” issue presented in Sandin v. Conner, No. 93-1911

(U.S. argued Feb. 28, 1995), this Court should hold this

petition pending the decision in Sandin, and, if appropri-

ate, vacate and remand?

3. Whether, if native Hawaiian beneficiaries possess

a “property interest” in being “placed on the land to the

fullest extent possible,” Due Process requires trial-type

proceedings before the Commission makes quasi-legisla-

tive determinations, which affect tens of thousands of

beneficiaries, concerning the size of Homestead lots the

Commission will permit to be leased?

PARTIES TO THE PROCEEDING

This action was initially instituted against Ilima

Pi‘ianaia, the then-Chairman of the Hawaiian Homes

Commission, and Commissioners Andrew Apana, Nani

Brandt, Edison Keomaka, Alvina Park, George Robertson,

and Walter Smith, as well as the Hawaiian Homes Com-

mission and the Department of Hawaiian Homes Lands

of the State of Hawaii. During the course of the litigation,

Hoaliku Drake succeeded Ms. Pi‘ianaia as Chairman of

the Commission, and, upon the election of Governor Ben-

jamin J. Cayetano, in November, 1994, Mr. Kali Watson

was appointed to succeed Mrs. Drake. Petitioners

Agpalsa, Freitas, Kauahi, Kumalae, Nathaniel, and

Sheehan have also been substituted in their official capac-

ities for their predecessors in interest. See generally Ken-

tucky v. Graham, 473 U.S. 159 (1985).

The Aged Hawaiians is an unincorporated associa-

tion that includes native Hawaiian benficiaries of the

Hawaiian Homes Commission Act. The Aged Hawaiians

have been named in the plural in the caption to follow

the manner in which they were denominated by the state

court. The association will therefore be referred to herein

as “Respondents.” See Pet. App. la.

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ......................... i

PARTIES TO THE PROCEEDING .................. ii

Sen Or Oe ne iii

See SR MATETHOMIT IBS «5 oo iv

RNY MERAIW cored oii itech. 2

ppc ony apcapeg ts RLS ES ee Coe ee ee ae 2

CONSTITUTIONAL AND STATUTORY PROVI-

seg sae ipcatet tO St CII ae eee ree a 3

SiAseoemns “OF THE CAGE. occ occ... 5

REASONS FOR GRANTING THE WRIT ........... 20

I. Review Should Be Granted to Correct the

Supreme Court of Hawaii’s Unprecedented

Expansion of the Standard for Defining Property

Interests that Mandate Due Process............ 21

II. Review Should Be Granted to Correct the

Supreme Court of Hawaii’s Radical Extension of

the “Process Due” in Trial-Type Proceedings to

Legislative-Style Spending Decisions........... 26

see ee ip gS ah aie ve pate, eae eee 30

TABLE OF AUTHORITIES

Page

CAsEs:

Ahia v. Department of Transportation, 69 Haw. 538,

Fa: Fame Gh CAO 8s ss ev 8, 22

Ahuna v. Department of Hawaiian Home Lands, 64

Haw. 327, 640 P.2d 1161 (1982) ................. 7, 18

Atkins v. Parker, 472 U.S. 115 (1985).............. 24, 30

Bi-Metallic Investment Co. v. State Board of Equaliza-

$400, tam We. SEL CRUISE ooo ioc cha vba cece. 27

Board of Regents v. Roth, 408 U.S. 564 (1972)..22, 23, 24

Chongris v. Board of Appeals of Town of Andover, 811

Rie 36 (ist Cle WOT) soa. eee ee 26

City of Richmond v. J.A. Crosen Co., 488 U.S. 469

Bj Se MEE miming BY EM SEAT E A ekg ewe 20

Cleveland Board of Education v. Loudermill, 470 U.S.

Doe (IONS) oe ei eee 23

Connecticut Board of Pardons v. Dumschat, 452 U.S.

SO NEFOR nse. Rt es erin ee ee aa, 20

Fleming v. Nestor, 363 U.S. 603 (1960)................ 27

Fusco v. State of Connecticut, 815 F.2d 201 (2d Cir.

Sd SERRE Ree POET re PIE E Tn RA cage nn aes 26

Goldberg v. Kelly, 397 U.S. 254 (1970)................ 24

Gray v. Mississippi, 481 U.S. 648 (1987).............. 28

Henry v. City of Rock Hill, 376 U.S. 776 (1984) (per

CORRRUND v.05 6 vin BERS ee RAN TE ok 26

Hewitt v. Helms, 459 U.S. 460 cc BREE GC een envge eta 23

Hisquierdo v. Hisquierdo, 439 U.S. 572 Ts og 2 SNR er: 27

TABLE OF AUTHORITIES - Continued

Page

Kentucky Department of Corrections v. Thompson,

OO US. GA GSD) 6. 0 EARS ae, 20,525

Legal Tender Cases, 79 U.S. (12 Wall.) 457 (4870) 2.3.3 24

Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982)

$PRSREN Scie bee be eR EWE Wk Ok ELE SES 64 o7 bes OR RK 24, 27, 30

Mathews v. Eldridge, 424 U.S. 325 (1976).......... 19, 26

O'Bannon v. Town Court Nursing Center, 447 US.

fas Bt 3, 1 BN RN seca FEB yaa ace hire: Sescnga gee ee 24

Richardson v. Belcher, 404 U.S. 78 CRUAR cover cihe 24

Sandin v. Conner, No. 93-1911 (U.S. argued Feb. 28,

POP h eet hie hare cab ban p95 hatch aw aE ei oo 25, 30

Sandy Beach Defense Fund v. City Council, 70 Haw.

Ns FE TIM A SOON oa oi ha po oc 26

State of Hawaii ex rel. Attorney General v. United

States, 676 F. Supp. 1024 (D. Haw. 1989), aff'd,

866 F.2d 313 (9th Cir. 1989) (per curiam)........... 9

Suter v. Artist M., 112 S. Ct. 1360 eee oa 16

United States v. Florida East Coast R. Co., 410 US.

Ra A hes se ina ek bo kk 27

United States Railroad Retirement Board v. Fritz, 449

Man ND iis se esc 27

Utah Division of State Lands v. United States, 482

We Rm CIS hcl se a oe 25

Vermont Yankee Nuclear Power Corp. v. National

Resources Defense Council, 435 U.S. 519 tg! ee 27

TABLE OF AUTHORITIES - Continued

Page

CONsTITUTION, STATUTES & LEGISLATION:

Fourtneny Ament ok ks iii 6 a eee fe K&S 3, 6

Be UR Ree bi kde boo 0 dads dv did vee 3

42 USA Jae 66.63 ayia ae 3, 14, 16

Administrative Procedure Act, Chapter 91, Haw.

Rev. Stat. (1965: Saw. -IG9R) cis viciscideds cvvenic 5

Hawaii Revised Statutes, Chapter 92................ 28

Hawaii Revised Statutes, § 92-2(1) (1985)............ 29

Hawaii Revised Statutes, § 92-3 (1985) .............. 28

Hawaii Revised Statutes § 92-5 (1985)............... 29

Hawaii Revised Statutes § 92-7 (1985)............... 28

Hawaii Admission Act, 73 Stat. 4 (Mar. 18, 1959)..... 3

Hawaiian Homes Commission Act of 1920, 42 Stat.

108 (July 9, 1921), reprinted in 1 Haw. Rev. Stat.

IG? 65 DM. kgnox a decnicen Gina a a,

Hawaiian Homes Commission Act § 201(7)........... 8

Hawaiian Homes Commission Act 2 eee ee 4,8

Hawaiian Homes Commission Act § 207.......... 8, 21

Hawaiian Homes Commission Act § 207(a)...... 4,5, 8

Hawaiian Homes Commission Act § 207(b)......... 4,5

Hawaiian Homes Commission Act § 208............. 8

Vii

TABLE OF AUTHORITIES - Continued

Page

Hawaiian Homes Commission Act § 209 (Supp.

Se ar JRAMGMMLEC Ames ObER 6 eRsdGAhe ou k.cocae 8

Hawaiian Homes Commission Act Pak 3) re 8

Hawaiian Homes Commission Act ik OO. Ea 8

Hawaiian Homes Commission Act 2) 8

Hawaiian Homes Commission Act Bek 8

Hawaiian Homes Commission Act § 213(a)(6)........ 8

Hawaiian Homes Commission Act § 213(b)(8)........ 8

Act of July 1, 1993, 1993 Haw. Sess. L. 996........... Y

Court RuLtes:

See eer ee We EE os ho oe het 2, 15

No. 94-___

In The

Supreme Court of the United States

October Term, 1994

HAWAIIAN HOMES COMMISSION; KALI WATSON, in his

capacity as Chairman of the Hawaiian Homes Commission;

WANDA MAE AGPALSA, ANDREW APANA, NANI :

BRANDT, ROCKNE FREITAS, DENNIS KAUAHI,

LLEWELYN KUMALAE, ANN NATHANIEL, PATRICIA

SHEEHAN, in their capacities as members of the Hawaiian

Homes Commission; and THE DEFARTMENT OF HAWAIIAN

HOME LANDS OF THE STATE OF HAWAII,

Petitioners,

vs.

THE AGED HAWAIIANS, an unincorporated association,

Respondents.

On Petition For Writ Of Certiorari To The

Supreme Court Of The State Of Hawaii

PETITION FOR WRIT OF CERTIORARI

Petitioners Hawaiian Homes Commission, et al., pray

that this Court issue a writ of certiorari to review the

opinion and final judgment of the Supreme Court of the

State of Hawaii issued in this proceeding on March 14,

1995.

OPINIONS BELOW

The opinion of the Supreme Court of Hawaii is

reported at 78 Haw. 192, 891 P2d 279 (1995), and is

reprinted in Appendix (“App.”) “A” to this Petition. The

“Notice and Judgment on Appeal,” which serves the

function of the mandate under state law, is unreported

and is reprinted in App. “B.” The orders of the Circuit

Court for the Third Circuit of the State of Hawaii, dated

August 25, 1992, September 1, 1992, and October 8, 1992,

leading directly to the appeal in the Supreme Court of

Hawaii, together with the Circuit Court’s order granting

certification pursuant to Rule 54(b), Haw. R. Civ. P., dated

March 2, 1993, are unreported and are reprinted in Apps.

“C”-“E,” respectively.

Other orders issued by the Circuit Court in the action

below, on October 4, 1989 (two orders), January 30, 1990,

February 6, 1990, and September 4, 1990, are also unre-

ported, and are reprinted in Apps. “G”-”K,” respectively.

JURISDICTION

The Supreme Court of Hawaii issued its opinion on

March 14, 1995, see App. “A,” and rehearing was not

sought by any party. The time in which this Petition must

be filed therefore extends to and includes June 12, 1995.

This Petition is timely.

The Supreme Court of Hawaii conclusively resolved

the Respondents’ claim that Petitioners had “subjected or

caused to be subjected” the Respondents to a denial of

procedural Due Process, in violation of the Fourteenth

FEES RSS Se ae

Amendment to the United States Constitution, and 42

U.S.C. § 1983. See App. 49a. The only claims on review in

the Supreme Court of Hawaii were claims brought pur-

suant to § 1983, see id., and the Supreme Court of Hawaii

took up and addressed Respondents’ Due Process claim

as a matter of federal constitutional law. The state court

opinion leaves nothing further to be done with respect to

Respondents’ Due Process claim. According to the

Supreme Court of Hawaii, “the Aged Hawaiians ar> enti-

tled as a matter of law to summary judgment on their

claim that the Commission violated their due process

rights when it failed to adequately consider their mem-

bers’ acknowledged desire for land sufficient to engage in

commercial ranching.” App. 49a. The state court’s judg-

ment with respect to the Due Process claim in this case is

final in all respects. Jurisdiction is thus invoked under 28

U.S.C. § 1257(a) to review the state court’s disposition of

the Due Process claim.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fourteenth Amendment to the Constitution pro-

vides in pertinent part that

No State shall . . . deprive any person of life,

liberty, or property, without due process of

law[.]

Pertinent portions of the Hawaiian Homes Commis-

sion Act of 1920, 42 Stat. 108 (July 9, 1921), as amended

(“HHCA”), reprinted in 1 Haw. Rev. Stat. 167 et seq., and

the Hawaii Admission Act, 73 Stat. 4 (Mar. 18, 1959), are

reprinted in Apps. “L” and “M,” infra. The most pertinent

portions of the HHCA related to this Petition are

§§ 204(2) and 207(a) and (b), which state in part:

In the management of any retained avail-

able lands not required for leasing under section

207(a), the department [of Hawaiian Home

Lands] may dispose of those lands to the public,

including native Hawaiians, on the same terms,

conditions, restrictions, and uses applicable to

the disposition of public lands in chapter 171,

Hawaii Revised Statutes [the general public

land law of Hawaii]; provided that the depart-

ment may not sell or dispose of such lands in fee

simple except as authorized under section 205 of

this Act; provided further that the department is

expressly authorized to negotiate, prior to nego-

tiations with the general public, the disposition

of a lease of Hawaiian home lands to a native

Hawaiian, or organization or association owned

or controlled by native Hawaiians, for commer-

cial, industrial, or other business purposes, in

accordance with the procedure set forth in sec-

tion 171-59, Hawaii Revised Statutes, subject to

the notice requirement of section 171-16(c),

Hawaii Revised Statutes, and the lease rental

limitation imposed by section 171-17(b), Hawaii

Revised Statutes [HHCA, § 204(2)].

* + aa

The department [of Hawaiian Home Lands]

is authorized to lease to native Hawaiians the

right to the use and occupancy of a tract or

tracts of Hawaiian home lands within the fol-

lowing acreage limits per each lessee: (1) not

more than forty acres of agriculture lands or

lands used for aquaculture purposes; or (2) not

, :

more than one hundred acres of irrigated pas-

toral lands and not more than one thousand

acres of other pastoral lands; or (3) not more

than one acre of any class of land to be used as a

residence lot [HHCA, § 207(a)].

+ + +

The title to lands so leased shall remain in

the [State]. Applications for tracts shall be made

to and granted by the department, under such

regulations, not in conflict with any provisions

of this title, as the department may prescribe.

The department shall, whenever tracts are avail-

able, enter into such a lease with any applicant

who, in the opinion of the department, is quali-

fied to perform the conditions of such lease

[HHCA, § 207(b)].

Also relevant to this case are portions of the Hawaii

Administrative Procedure Act, Chapter 91, Haw. Rev.

Stat. (1985 & Supp. 1992) (“HAPA”). These provisions are

printed in App. “N.”

STATEMENT OF THE CASE

This case arises out of the State of Hawaii's manage-

ment of the oldest and largest public benefit program

established for the benefit of the indigenous people of the

Fiftieth State. Unlike native Americans on the mainland,

native Hawaiians are not recognized as tribes and do not

have formal treaty relations with the United States.

Rather, in 1921, Congress, through its power to legislate

for the benefit of native Americans, established the

Hawaiian Homes Commission Act, a homesteading pro-

gram for native Hawaiians. When Hawaii became a State

in 1959, administration of this homesteading program

was transferred to the Fiftieth State.

From its inception, the homesteading program has

been plagued by a lack of capital and a shortage of

desirable land. Because most of the Home Lands are

located in the poorest and most remote areas in the

Islands —- many miles from the nearest roads, sewers, or

running water — the cost of preparing the land for home-

steading was, and has remained, enormous. Congress, in

its wisdom, has never provided funding for the infra-

structure necessary to make the land habitable and pro-

ductive. Instead, Congress left it to the Act’s

administrators to raise capital from the corpus of “avail-

able lands” granted to the program in 1921. Since their

creation, the Department of Hawaiian Home Lands, and

its overseeing board, the Hawaiian Homes Commission,

have been plagued by the difficult choice of placing

native Hawaiians on the land without needed infrastruc-

ture, or of leasing the land to non-Hawaiians so as to

amass capital for infrastructure, or of pursuing a combi-

nation of options, including limiting the size of home-

stead lots, so as to place as many on the land as possible.

As many as twelve thousand individuals are on the wait-

ing list for homesteads. Well over five thousand individ-

uals have been awarded homesteads, but many of these

individuals have a desire to obtain more land.

This case arises out of the Supreme Court of Hawaii's

deployment of the Due Process Clause of the Fourteenth

Amendment in a manner that threatens to stop the home-

steading program in its tracks. In the decision below, the

Supreme Court of Hawaii held that each of the twenty

thousand beneficiaries of the Act has a federally-pro-

tected “property right” to “be placed on the land to the

fullest extent possible.” Although the Supreme Court of

Hawaii never defined what this “property right” entails,

and never disputed the Commission’s unquestioned

power to lease lands to non-Hawaiians in order to gener-

ate capital, or to establish lot sizes so as to maximize the

number of homesteads, the state court held that this

“right” was sufficient to trigger not only Due Process

protection, but the right to federally-compelled trial-type

administrative process prior to every management deci-

sion made by the Commission. Left to stand, the state

court’s decision grants every one of twenty thousand

individuals the ability to force the Commission to trial

whenever the Commission chooses to allocate the assets

of the Homestead Trust corpus in one manner or another.

Whether the decision is to build sewers on Maui, to run

roads on Molokai, or to make new subdivision lot sizes

bigger on Kauai, or smaller on the Big Island, the

Supreme Court of Hawaii has effectively granted every

native Hawaiian the right to a federally-mandated evi-

dentiary trial before the Commission and Department

may take action.

Whether this decision should stand is the issue here.

1. The Hawaiian Homes Commission Act, 42 Stat.

108 (July 9, 1921) [“HHCA” or “Act”], was passed by

Congress with its “primary purpose” being “the reha-

bilitation of native Hawaiians.” Ahuna v. Department of

Hawatian Home Lands, 64 Haw. 327, 336, 640 P.2d 1161,

1167 (1982). The Act’s beneficiaries include those “of not

less than one-half part of the blood of the races inhabiting

the Hawaiian Islands previous to 1778,” HHCA § 201(7),

as well as certain of their descendants, id. § 209 (Supp.

1992). The Act authorizes a “homestead” program for

these Hawaii natives to be established on certain “avail-

able lands” pursuant to the Act’s terms. Id. §§ 207, 208,

209. Homestead lands are “authorized” for “lease to

native Hawaiians” in “acreage limits per each lessee” of

“not more than forty acres of agriculture lands or lands

used for aquaculture purposes;” “not more than one hun-

dred acres of irrigated pastoral lands and not more than

one thousand acres of other pastoral lands;” or “not more

than one acre of any class of land to be used as a resi-

dence lot[.]” Id. § 207(a). “In the management of any

retained available lands not required for leasing under

section 207(a),” the Department of Hawaiian Home Lands

is given the authority to “dispose of those lands to the

public, including native Hawaiians, on the same terms,

conditions, restrictions, and uses applicable to the dispo-

sition of public lands” otherwise owned by the State. Id.

§ 204(2). Section 207(a) provides no standard defining

when the Home Lands are “required for leasing” as

homesteads to Hawaiians.

2. Leasing to non-Hawaiians, known as “general

leasing,” has been necessary from the Act’s inception by

the need for capital to build roads, sewers, water lines,

irrigation systems, and utility lines. See generally Ahia v.

Department of Transportation, 69 Haw. 538, 751 P.2d 81

(1988). Although Congress gave the Commission the

authority to draw on lease rents collected on certain

general public lands, see HHCA §§ 213(a)(1), 213(b)(8),

and on appropriations from the State of Hawaii, id.

§§ 213(a)(3)-(a)(6), these funds have never provided an

’

income stream large enough to place on the land all, or

even a majority, of those on waiting lists for the various

Home Lands categories.! Indeed, persistent under-fund-

ing of the program has made it possible to award only

about 38,000 acres to native Hawaiian homesteaders out

of the approximately 190,000 acres available for home-

steading. See 2/13/92 Aff. of Hoaliku Drake at para. 14, 6

Record on Appeal (“R.A.”) 1, 17. Meanwhile, the number

of potential homesteaders under the Act has increased

substantially as the population of eligible beneficiaries

1 Indeed, for much of their history, the statutory funding

sources set up by Congress were capped in such a manner that

receipts in excess of a certain amount were transferred to other

Territorial and later State programs. See, e.g., 42 Stat. at 112.

Under these caps, whose effect was reinforced by other statu-

tory impediments to the withdrawal of “available lands” for

homesteading, the DHHL and its predecessors have been “net

exporters” of capital to other territorial and state departments

for much of the seventy-five year history of the program. In

addition, as documented elsewhere, many thousands of acres of

land were also illegally transferred out of the trust via Executive

Orders and Governor’s Proclamations, mainly during the terri-

torial period. These transfers, to the extent possible, were over-

turned by Governor George Ariyoshi only in the 1980s. See State

of Hawaii ex rel. Attorney General v. United States, 676 F. Supp.

1024 (D. Haw. 1989), aff'd, 866 F.2d 313 (9th Cir. 1989) (per

curiam). As the Supreme Court of Hawaii acknowledged in this

case, the State of Hawaii has attempted to redress these diver-

sions from the trust corpus, by repayments from the State’s

general funds, e.g., the Act of July 1, 1993, 1993 Haw. Sess. L.

996, and by the transfer of 16,000 acres of general public lands

back into the trust. See generally Haw. H.B. 1828, H.D. 2, S.D. 1,

C.D. 1, returned on procedural grounds and re-enacted as Haw. H.B.

10-S (June 5, 1995) (confirming 16,000 acre transfer and obligat-

ing the State to pay a total of $600 million within the next twenty

years to compensate Home Lands trust).

has increased and as greater success in recent years in

awarding lease lots has encouraged even more native

Hawaiians to place their names on the waiting lists. 5

R.A. 92, 93. Close to twelve thousand native Hawaiians

remain on one or more waiting lists. See 6 R.A. 1, 17

(Drake Aff.).

3. This case concerns awards of “pastoral lots,”

potentially the largest-sized lots available in the program.

The lands at issue are located in the Waimea district on

the Big Island of Hawaii, and consist of lands at Nienie,

Puukapu, Kamoku, and Kapulena. Pl. 12/22/89 Exh. 4, 2

R.A. 56. In 1952, the Commission held a lottery among

the 187 qualified applicants for pastoral lots in the range

of 200-300 acres, and awarded 48 homestead leases. Id. at

55, 56, 66, 75. Two of the members of the plaintiff group

now known as the “Aged Hawaiians”, Theresa B. Lau,

and John K. Lindsey, were ranked 78 and 172 in the

lottery, and received no land in the 1952 distribution. Id.

at 65.

4. In its “management of retained lands not

required for leasing” under § 204 of the Act, the Commis-

sion, following the 1952 awards, chose to place additional

land in the Waimea district into general lease. Numerous

studies were undertaken periodically to assess the via-

bility of commercial ranching. None indicated that such

ranching was clearly sustainable or even desired by large

numbers of beneficiaries. A 1964 study by the State’s

Legislative Reference Bureau, for example, revealed that

the Department’s relatively low priority for awarding

pastoral lots was an “almost inevitable result of social

and economic forces beyond the control of those who

originally conceived the program.” PI. 1/15/92 Exh. 20,5

R.A. 134. The urbanization of Hawaii led to “increasing

lack of interest on the part of young people in following

agricultural pursuits,” leading the Department properly

to transform “a return to the land, agricultural, rural

homesteading program into the rather unique, primarily

non-agricultural, homesteading program that now

exists.” Id. A 1974 consultant’s report estimated that, to

sustain commercial ranching on the Puukapu lands that

had yet to be leased for homesteading would require

“from 400 to 700 acres,” up to more than double the

acreage awarded in the 1950s. Pl. 1/15/92 Exh. 1, 5 R.A.

49. Another report, two years later, concluded that, at an

award level of 400 acres per lessee, “farming here can be

successful [only] if and when State water and agricultural

policies affecting this area are resolved.” Id. Exh. 2, 3, 5

R.A. 57. The Department, in its 1986 report, thus contem-

plated that the land would have to remain in general

lease up until 1988, at a minimum, so as “to aid in

developing improvements” that would facilitate farming.

Id. By 1988, Respondents’ own expert estimated that the

Puukapu lands could not support a family even at the

national poverty level unless awards were made in the

range of 400 acres for the oceanward (“makai”) sections

and 900 acres in the mountainward (“mauka”) sections.

Pl. 1/22/92 Exh. 16, 5 R.A. 91. By 1990, the Department's

expert evaluations concluded that “to achieve the true

commercial viability for ranching in Hawaii, including

the Waimea and surrounding areas, would require

between 1000 and 1200 acres of unirrigated pasture land,”

that is, land awards at the statutory maximum or beyond.

2/13/92 Drake Aff. { 12, 6 R.A. 17. By contrast, as of

1992, awarding even one fifth of the applicants on the

pastoral waiting list a full 1000-acre grant would exhaust

the entire non-homesteaded corpus of Home Lands, leav-

ing more than 10,000 applicants and their families with

no hope of ever obtaining a lease lot. Id. {{ 6, 12, 14, 6

R.A. 16, 17.

5. As repeated studies confirmed the inappropriate-

ness of awarding “commercial sized” pastoral lots, the

Commission took action to distribute Waimea lands to

beneficiaries. In July, 1986, as part of an “acceleration”

program first proposed by the 1983 Report of the Federal-

State Task Force on the Hawaiian Homes Commission

Act, Pl. 1/15/92 Exh. 21, 5 R.A. 139, the Commission

approved distribution of pastoral lots of 25 acres or more

in Waimea, deciding in 1986 to limit the size of such lots

to no more than 100 acres. Pl. 12/26/89 Exh. 26 at 6, 2

R.A. 141; Pl. 1/15/92 Exh. 7, 5 R.A. 64. A year later, with

a change in administrations, more public meetings, and

staff study,? Commission staff developed a proposal for

pastoral homesteads varying in size “from 5 to 20 acres”

having “different levels of improvement depending on

* Public meetings culminated in a 1987 vote by the Com-

mission to delay the 1986 plan for withdrawal of “up to 1,600

acres” at Puukapu out of genera! leasing, on the basis of Com-

missioner Ahuna’s recognition that “the lot sizes were pared in

order to accommodate a larger number of applicants on the

waiting list,” but that there had not yet been “sufficient dia-

logue between the Commission and [beneficiaries] with regard

to pasture lot sizes.” Def. 2/13/92 Exh. “B” to Exh. “C,” 6 R.A.

51. This vote led to further staff study, “workshops held with

HHC members, discussions with applicants for homestead

leases and with existing lessees,” and study of “additonal data”

“of projected cost/benefits relating to infrastructure develop-

ment on pastoral homesteads.” Pl. 12/22/89 Exh. 26, 2 R.A. 141.

the lot size.” Pl. 12/22/89 Exh. 26, 2 R.A. 142. Develop-

ment of the Puukapu pastoral homestead proposal was

aided by guidelines contemporaneously adopted by the

Department known as the “ten premises” for award of

pastoral lots. See 5 R.A. 113-14, 120-27. These premises

were based on findings that: (1) the “land use and cost

implications” made it infeasible to assist commercial

ranching within the parameters of the Act; (2) the Com-

mission had a moral duty to all those on the waiting lists;

(3) lands planned for pastoral use could be put to better

and higher use as agricultural or residential homesteads;

(4) safe human habitation required the placement of

infrastructure on all homestead land; (5) DHHL should

not spend a greater per capita share of its resources on

pastoral as opposed to agricultural or residential lessees;

(6) two head of cattle could nonetheless support “the

immediate and future consumption needs of a homestead

family”; (7) small ranches, known as “ranchettes” of 3 to

5 acres, were already functioning in the private market in

Waimea; (8) balancing competing interests would be

required to assess the optimum lot size; (9) opportunities

for native Hawaiians to ranch commercially should be

pursued through the identification of other lands “which

should be set aside for commercial ranching by native

Hawaiians”; and (10) present lease conditions should be

revised to facilitate private financing. Pl. 12/22/89 Exh.

26, 2 R.A. 138. By February, 1989, “work was well under-

way surveying and staking some 168 10, 15, and 20-acre

pastoral lots,” with the “awarding of homestead lots”

scheduled for summer, 1989.” Def. 2/13/92 Exh. = 8

R.A. 45-46. On October 2, 1989, DHHL notified applicants

on the waiting list that a lot selection meeting would take

place on October 14, 1989, at which time the 166 proposed

lots at Puukapu would be offered first to those on the

1952 Waimea Area and then Hawaii Islandwide Pastoral

Lease Waiting Lists. Pl. 8/23/90 Exh. “A,” 3 R.A. 173.

Had DHHL’s plan been implemented, it would have

placed all of the surviving beneficiaries from the original

1952 waiting list on the land.

6. July, 1989, however, Respondents filed suit in the

Circuit Court for the Third Circuit, State of Hawaii claim-

ing that the Commission had violated the Aged Hawai-

ians’ Due Process rights, as well as various provisions of

the Act, in breach of 42 U.S.C. § 1983. 1 R.A. 1, 16.

Respondents prayed for equitable relief barring the Com-

mission from denying Plaintiffs “the opportunity to

obtain larger pastoral lot awards of sufficient size to

allow them the opportunity to attain greater self-suffi-

ciency through commercial ranching.” Id. The Circuit

Court, on October 4, 1989, preliminarily enjoined distri-

bution of the Puukapu lots on the basis that the “Ten

Premises” were not properly promulgated after notice-

and-comment rulemaking procedures, as required by the

Hawaii Administrative Procedure Act, but, after rulemak-

ing procedures were complied with, allowed lot selection

under a Commission plan to award 166 “lifestyle”

(“ranchette”) lots in Puukapu, eight 100 acre and eight

200 acre lots in Puukapu, as well as five 100 acre lots in

Humuula as “a good faith response to the desires of some

of the beneficiaries to commercially ranch.” 8/31/90 Aff.

of Hardy Spoehr at { 8, 6 R.A. 40. See also App. “K”

(Order). On September 15, 1990, all of the lots made

available were selected by those on the waiting list, with

the first 21 applicants allowed a right of first refusal upon

the 100 and 200-acre lots made available by the Commis-

sion’s 1990 plan. Pl. 1/15/92 Exh. “18-A.” One member of

the Aged Hawaiians, Sonny Koniho, selected a 121 acre

pastoral lot at Humuula, which he then joined with four

other lots selected by his brothers. See 1/15/92 Koniho

Aff. {J 2, 10, 5 R.A. 169. Nonetheless, Koniho continued

to seek “more land for ranching activities.” Id. ] 3. Every

one of the Aged Hawaiians was offered the opportunity

to take a pastoral lot.

7. Thereafter, Respondents filed an amended com-

plaint that sought nullification of the Ten Premises on

additional federal grounds, and a declaration that Peti-

tioners had violated the HHCA and Due Process by refus-

ing Respondents’ request for an “economically viable

pastoral lot unit,” and by denying each of the Respon-

dents a trial-type hearing under the Administrative Pro-

cedure Act before doing so. 4 R.A. 241-50. The Circuit

Court struck down the Ten Premises as unconstitutionally

“vague,” but granted summary judgment for the Depart-

ment and its officials on the ground that the Aged Hawai-

ians’ other claims required an exercise of primary agency

jurisdiction. See Apps. “C”-“E.” The Court then certified

this partial summary judgment under Rule 54(b) of the

Hawaii Rules of Civil Procedure (which is identical to its

federal counterpart). See App. “F” (certification).

8. On appeal, the Supreme Court of Hawaii vacated

in part, and reversed in part. See Pet. App. 49a. The Court

rejected the doctrine of agency primary jurisdiction as a

defense, because at issue was “the constitutionality of the

agency’s rules and procedures” and “questions are raised

as to whether the agency has operated within the scope of

its authority.” Id. at 22a. The court also rejectec’ Peti-

tioners’ arguments that the Aged Hawaiians’ claims had

been substantially altered by the 1990 lot awards, and

therefore were premature in their present configuration,

id. at 24a-27a, and that the Aged Hawaiians lacked orga-

nizational standing, id. at 28a. The court then proceeded

to analyze two distinct federal claims: (1) that Petitioners

allegedly violated a set of “trust” duties to Respondents,

thereby breaching the HHCA, and the “and laws” lan-

guage of § 1983; and (2) that Petitioners assertedly

deprived Respondents of “property” without federally

mandated procedural Due Process.

a. With respect to the breach of trust claim, the

court rejected Petitioners’ claim that the principles of this

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

(1992), forbade the enforcement of the HHCA via § 1983.

See Pet. App. 29a-40a. However, the Court did not enter a

final judgment on this claim, finding only that there was

a genuine issue of material fact whether ranching on a

commercial basis could occur on lots of 1000 acres or less.

See id. at 9a n.8, and at 41a-43a.

b. As to the Aged Hawaii’s federal procedural Due

Process claim, however, the court reversed the Circuit

Court outright, even though such a remedy was never

prayed for on appeal by the Respondents.? Petitioners, to

* The Respondent’s Opening Brief raised, as the only point

of error, whether “[t]he lower court erred when it concluded

that the doctrines of primary jurisdiction and exhaustion of

administrative remedies barred Appellants from seeking judi-

cial relief under 42 U.S.C. § 1983,” Op. Br. at 9, No. 16974 (Haw.

filed Sept. 7, 1993), and did not pray for entry of judgment in

favor of Respondents. Respondents’ prayer in the Supreme

preserve the record, presented argument on the federal

constitutional argument as follows:

First, to the extent Appellant would seek to

“carryover” the asserted wrongs inflicted on

them by the 1990 distribution, such efforts are

barred by their own concessions below that they

wish not to disrupt those distributions, and by

the analysis of “retrospective” relief set forth in

Pele Defense Fund, supra.

Second, it is quite clear that Appellant's

members do not have any “property” in an

“economic unit” award. As the Supreme Court

has made clear on any number of occasions,

property interests “are created and their dimen-

sions are defined by existing rules or under-

standings that stem from an independent source

such as state law — rules or understanding that

secure certain benefits and that support claims

of entitlement to those benefits.” Board of

Regents v. Roth, 408 U.S. 564, 577 (1976). As the

foregoing makes clear, the Commission has

broad discretion to determine the size of.

awarded pastoral lots; indeed, circumscription

of the Commission’s discretion in the way that

Plaintiff suggests would potentially require nul-

lifying the hopes of 99 per cent of those on the

waiting list for homestead property. Such an

absurd reading of the statute should be rejected.

Just as a Legislature has the discretion to set

welfare benefit levels at particular amounts

without individualized procedures, it lies within

the Commission’s discretion to rule out large

awards by “legislative-type” process. Whether

Court of Hawaii stated: “For the foregoing reasons, Appellants

The Aged Hawaiians respectfully request that this Honorable

Court reverse the lower court’s October 8, 1992 Order and

remand this case for trial on the merits.” Id. at 25.

notice-and-comment rule making, as codified in

Chapter 91, Haw. Rev. Stat., applies] to any “in

gross” determinations, the mere expectation of

receiving such process is not a “property right”

to which due process attaches. Olim v. Wak-

inekona, 461 U.S. 238, 250 n.12 (1983). It is of

course true that, once a lease lot is awarded

Plaintiff’s members have due process rights

against its termination. See In re Smith, 68 Haw.

466, 719 P.2d 397 (1986). However, here the

Plaintiff’s members have not yet “acquired

. . . specific benefits,” Roth, 408 U.S. at 576, and

have no entitlement to the sort of benefit they

claim. Dismissal was thus correct here.

Third, by any notion, Plaintiff’s members

have received the “process due.” Not only was

the Plaintiff’s representative allowed to make a

full-blown presentation to the Commission prior

to the 1990 distribution, Plaintiff succeeded in

obtaining, from the Commission, not only sub-

stantial modifications of the 1989 distribution

plan, but also additional pledges by the Com-

mission, at its July 31, 1990, meeting, to provide

greater opportunities for aspiring rancher-bene-

ficiaries. Even holding aside the additional pro-

cess directed by the lower court over our

objection, Appellant and its members received

overwhelmingly sufficient process. See Sandy

Beach Defense Fund v. City Council, 70 Haw. 361,

773 P.2d 250 (1989).

Ans. Br. at 34-35, No. 16974 (Haw. filed Nov. 4, 1993).

c. In directing judgment on Respondent's pro-

cedural due process claim, the Supreme Court relied on

the analysis of its previous decision in Ahuna v. Depart-

ment of Hawaiian Home Lands, 64 Haw. 327, 640 P.2d 1161

(1982), to the effect that the HHCA imposes a duty on the

Commission and the Department to place native Hawai-

ian beneficiaries “on the land to the fullest extent possi-

ble.” Pet. App. 45a; see id. at 40a (quoting Ahuna). This

language, which is found nowhere in the Act, warranted

the Court to hold that beneficiaries have a right not to be

“arbitrarily” denied “the award of an ‘economic unit.’ ”

Id. at 45a.

d. The Court also found that, as a matter of federal

law, the process afforded to Respondents on their claims

for more land than they got in 1990 was constitutionally

deficient. Purporting to invoke the three-part test from

Mathews v. Eldridge, 424 U.S. 329, 335 (1976), see Pet. App.

47a, the Court relied on what it termed the “procedural

infirmities” with the 1990 awards, including the non-

compliance with rulemaking procedures that led to delay

of the awards, the vagueness of the “ten Premises” as was

found by the Circuit Court, a “failure to provide adequate

notice or opportunity to be heard in conjunction with the

development of the 1990 Plan”; the setting of lot sizes of

100 and 200 acres which, in the Court’s view, did not

“serve any conceivable Statutory purpose”; and the

denial of a trial type proceeding to one Plaintiff who later

dropped out of the litigation. Pet. App. 48a. Based on this

cornucopia of asserted wrongdoing, the court held that

all of the beneficiaries on the pastoral waiting list (includ-

ing those who may have been granted other Home

Lands) are entitled to the full trial-type process required

by the “contested case” procedures established in the

Administrative Procedure Act. See Pet. App. 49a and

App. “N,” Infra.

REASONS FOR GRANTING THE WRIT

Permitted to stand, the decision of the Supreme

Court of Hawaii will have wide-ranging permanent

effects on the lives of thousands of native Hawaiians and

their families. Those effects will not be positive ones, and,

left unreviewed, the decision below will fundamentally

restrict the ability of the Department of Hawaiian Home

Lands, the Hawaiian Homes Commission, and their offi-

cers, to manage this historically underfunded program in

the best interests of the beneficiaries. The decision below

is not limited to the setting of lot sizes in the Waimea

District,4 and on its face grants every one of twenty

thousand beneficiaries of the program, whether they are

on the waiting list or not, and whether they have been

granted land or not, the right to challenge every spending

decision of the Department through trial-type pro-

cedures. Because the Department’s land and assets are

finite, and because the placement-on-the-land-to-the-full-

est-extent-possible standard sets no priority among bene-

ficiaries, every beneficiary has the same right under the

state court’s decision to challenge whether lot sizes in

every new subdivision — wherever located — are greater

or smaller, or whether roads are to be built in one subdi-

vision, or sewers in another. Given that the Department's

asset base is limited not only practically, but legally,5 the

4 Even if it were, the havoc it portends for the homestead

program would warrant this Court’s review, insofar as the

award of large lots on the Big Island threatens to severely limit

the number of beneficiaries who may be placed on the home

lands.

5 Cf. City of Richmond v. J.A. Crosen Co., 488 U.S. 469 (1989)

(holding that state-created minority benefit programs, not

ability of individual beneficiaries to litigate every

“resource allocation” decision threatens to end the Home-

stead program as a practical matter.

The decision of the Supreme Court of Hawaii, resting

as it does on federal grounds, cannot be undone by the

Hawaii legislature, nor by amendment of the state consti-

tution. Moreover, given the acknowledged discretion of

the Commission to manage the Home Lands in ways that

require some beneficiaries to suffer at the expense of

others, it is doubtful that the decision below could be

rectified even by a congressional repair to the HHCA

itself. This court’s scarce resources are vitally needed to

restore the flexibility which the Hawaiian Homes Com-

mission needs, and is entitled to under federal law, if it is

to serve its many beneficiaries efficiently, and without

undue delay.

I. Review Should Be Granted to Correct the Supreme

Court of Hawaii's Unprecedented Expansion of the

Standard for Defining Property Interests that Man-

date Due Process.

The decision below cannot be rationalized as simply

a misreading of the Act. The Supreme Court of Hawaii

never disputed that “ ‘the Commission has a “special”

statutory competence in ascertaining whether lands are

“required for leasing” under § 207 of the Act, or may be

used for general leasing Purposes to facilitate other statu-

tory goals[,]’” Pet. App. 38a n.27. Although the Act gives

native Hawaiian beneficiaries a theoretical “opportunity

within the shelter of Congressional action, are subject to review

under the “strict Scrutiny” standard).

to pursue commercial ranching activities,” id. at 41a, the

Hawaii Supreme Court’s statement that the Act requires

placement “ ‘on the land to the fullest extent possible’ ” —

even if true, which we doubt - does not, given the statute

as a whole, create “a legitimate claim of entitlement” to a

pastoral lot of any particular size. Board of Regents v. Roth,

408 U.S. 564, 577 (1972). The Supreme Court of Hawaii

gave no hint that it was retreating from its decision in

Ahia v. Department of Transportation, 69 Haw. 538, 751 P.2d

81 (1988), that “leasing available lands to generate reve-

nues for the department’s administrative and operating

budget” is wholly “compatible with the mandate to reha-

bilitate native Hawaiians through a serious of projects.”

Id. at 550, 751 P.2d at 89. In fact, the Supreme Court of

Hawaii recognized that the threat of large lot awards to

“the HHCA revenue base and, consequently, the interest

of other HHCA beneficiaries” subjected the Commis-

sion’s rulings only to a basic requirement of “rationality.”

App. 25a.

This amorphous standard could not possibly give

rise to “a legitimate claim of entitlement.” Kentucky

Department of Corrections v. Thompson, 490 U.S. 454, 460

(1989). The statute here, like that in Thompson, “stops

short of requiring that a particular result is to be

reached,” id., and therefore fails to create a property

right. See id. at 460 (applying the Roth test to analyze

whether prisoner has a protected “liberty” interest).

When it comes to its concrete application, the placement-

on-the-land-to-the-fullest-extent-possible test simply fails

“to provide ‘particularized standards or criteria [to]

guide the State’s decisionmakers.’” Id. at 462 (quoting

Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 467

(1981) (Brennan, J., concurring)). Because the Supreme

Court of Hawaii’s own reading of the Act fails to contain

“specific directives to the decisionmaker that if the regu-

lations’ substantive predicates are present, a particular

outcome must follow,” there is no “claim of entitlement”

for Due Process Purposes. Id. at 463 (citing Hewitt v,

Helms, 459 U.S. 460, 471-72 (1983)). Although, Thompson,

Dumschat, and Hewitt dealt with protected “liberty” as

opposed to “property,” the state court’s decision cannot

be explained away on the basis of this difference. Indeed,

the Court in Thompson expressly viewed the Roth test as

applying similarly to claims of both “property” and “lib-

erty,” and that analysis should have been followed by the

Supreme Court of Hawaii. See 490 U.S. at 462.

Indeed, the decision below fundamentally conflicts

with this Court’s leading precedents outlining the sorts of

interests which qualify as “property” within the meaning

of the Due Process Clause. In Roth itself, the leading case

in this Court’s modern jurisprudence of what constitutes

“property,” the Court held that a “property interest”

arises only from “rules or understandings that secure

certain benefits and that support claims of entitlement to

those benefits.” 408 U.S. at 577. The Supreme Court of

Hawaii's placement-on-the-land-to-the-fullest-extent-pos-

sible standard simply fails to grant anyone either “certain

benefits” or a “claim of entitlement to [such] benefits.”

Because the Respondents’ identified “interest” tells the

Commission nothing about which set of native Hawaiians

shall be preferred in allocating the Home Lands assets,

their claim upon the corpus is no more than a “unilateral

expectation” that the Commission will rule their way. Id.

Such is not the stuff of federally protected “property.”

Cf. Cleveland Board of Education v. Loudermill, 470

U.S. 532, 538 (1985) (Employees “entitled to retain

their positions ‘during good behavior and efficient ser-

vice,’ “ “possessed property rights in continued employ-

ment”).

When the Government creates a welfare benefit pro-

gram, and establishes defined eligibility criteria, citizens

have “a right to a hearing at which they might attempt”

to demonstrate that they are “in fact, within the statutory

terms of eligibility.” Roth, 408 U.S. at 577 (citing Goldberg

v. Kelly, 397 U.S. 254 (1970)). But this hardly means that

citizens have a property right in the allocation of assets to

- or even within — the program itself, or even to a

particular level of benefits. As in Atkins v. Parker, 472 U.S.

115 (1985), this case “does not concern the procedural

fairness of individual eligibility determinations,” id. at

129. Rather, this case implicates an “appraisal of the

relative importance of the recipients’ needs and the

resources available to fund the program.” Id. And just as

“[t]he procedural component of the Due Process Clause

does not ‘impose a constitutional limitation on the power

of Congress to make substantive changes in the law of

entitlement to public benefits,’ ” id. (quoting Richardson v.

Belcher, 404 U.S. 78, 81 (1971)), neither does the Due

Process Clause recognize, as federally protected “prop-

erty,” interests in a particular set of eligibility criteria or,

a fortiori, in quasi-legislative decisions that lead to

changes in such criteria. Id. at 130 n.32 (citing, e.g., Logan

v. Zimmerman Brush Co., 455 U.S. 422, 432-33 (1982)).° The

789 (1980) (quoting the Legal Tender Cases, 79 U.S. (12 Wall.) 457,

551 (1870)) (Due Process constraints apply to “a direct appro-

priation, and not to consequential injuries resulting from the

exercise of lawful power”).

Supreme Court of Hawaii's grievous misapplication of Roth

and its progeny warrants review. A writ should issue.

Indeed, this Court should hold this case pending the

decision in Sandin v. Connor, No. 93-1911 (U.S. argued Feb.

28, 1995). Sandin raises issues similar to those presented in

this case, although the subject there is whether a “liberty

interest” has been created.”

At a very minimum, review should be granted.

” Sandin raises questions whether and to what extent con-

cerns for federalism and the judiciary’s relative competence to

manage large-scale programs should play a role in the ascertain-

ment of federally protected interests under the Due Process

Clause, see Pet. Br. at 25-37, No. 93-1911 (U.S. filed Nov. 16,

1994), and also presents questions concerning the extent to

which some “mandatory” language in a state law gives rise to

protected federal interests, see id. at 37-48. See generally Kentucky

Department of Corrections v. Thompson, 490 U.S. at 461-62 & n.3,

464 n.4. This case presents very similar issues.

First, this case raises very serious federalism concerns, inso-

far as the Hawaii Supreme Court derived the “property” right

asserted here from Hawaii's own Admission Act. As this Court

has held, courts interpreting such acts should be loathe to imply

federal duties. Indeed, because Hawaii's Admission Act wel-

comed the Fiftieth State into the Union “on an equal footing”

with the original thirteen States, burdens on the Home Lands

are not to be implied “ ‘unless the intention was definitely

declared or otherwise made very plain.’ ” Utah Division of State

: Lands v. United States, 482 US. 192, 201-02 (1987) (citation

| omitted). Although this truth amplifies why this Court ought

grant plenary review, at least it counsels holding this case pend-

ing Sandin.

Second, at a minimum this case, like Sandin presents the

issue of whether the HHCA has “relevant mandatory language.”

490 U.S. at 464 n.4. The Court’s treatment of that issue in Sandin

will likely - whether the Petitioner in Sandin wins or loses -

have a bearing on this case. It should be stressed that a

II. Review Should Be Granted to Correct the Supreme

Court of Hawaii’s Radical Extension of the “Process

Due” in Trial-Type Proceedings to Legislative-Style

Spending Decisions.

In ordering the Department to provide trial-type hear-

ings to every native Hawaiian beneficiary who desired to

challenge the Commission's determination not to grant large

pastoral leases, the Supreme Court of Hawaii purported to

rely on this Court’s general standard, set forth in Mathews v.

Eldridge, 424 U.S. 325, 335 (1976). See Pet. App. 47a. But the

Court ignored the most pertinent line of decisions from this

Court, which makes clear that the types of quasi-legislative

decisions made by the Commission in setting lot sizes, or in

determining whether to set lands aside for capital formation,

need not be accompanied by trial-type process. For this

reason, too, a writ should issue.

summary remand should be granted even if the Court is “not

certain that the case [is] free from all obstacles to reversal on an

intervening precedent[.]” Henry v. City of Rock Hill, 376 U.S. 776,

776 (1964) (per curiam). It is sufficient that the intervening

decision is “sufficiently analogous, and, perhaps, decisive to

compel re-examination of the case.” Id. at 377.

® Petitioners brought this line of reasoning to the attention

of the Supreme Court of Hawaii by their reliance on Sandy Beach

Defense Fund v. City Council, 70 Haw. 361, 773 P.2d 250 (1989),

which properly held that “adjudicatory type hearing[s]” do not

need to be given in basic zoning determinations, even though

property owners as close as 300 feet to the zoning change might

be affected. Id. at 378-79, 773 P.2d at 261. Sandy Beach and a host

of decisions in other appellate courts, make clear that basic

zoning decisions, and, a fortiori, appropriation decisions such

as those here, do not require trial-type process. See, e.g., Fusco v.

State of Connecticut, 815 F.2d 201, 205-06 (2d Cir. 1987); Chongris

v. Board of Appeals of Town of Andover, 811 F.2d 36, 41 (1st Cir.

As this Court squarely held eighty years ago:

Where a rule of conduct applies to more than

a few people it is impracticable that every one

Should have a direct voice in its adoption. The

constitution does not require all public acts to be

done in town meeting or an assembly of the

whole. General statutes within the state power

are passed that affect the person or property of

individuals, sometimes to the point of ruin, with-

out giving them a chance to be heard. Their

rights are protected in the only way that they can

be in a complex society, by their power, immedi-

ate or remote, over those who make the rule.

Bi-Metallic Investment Co. v. State Board of Equalization, 239

U.S. 441, 445 (1915). This fundamental tenet — that quasi-

legislative decisions need not be accompanied by any sort

of trial-type process — has been continually reaffirmed by

this Court, often in strong terms. See Fleming v. Nestor, 363

U.S. 603, 608-11 (1960); Hisquierdo v. Hisquierdo, 439 US.

572, 575 (1979); United States Railroad Retirement Board v.

Fritz, 449 U.S. 166, 174 (1980); Logan v. Zimmerman Brush

Co., 455 U.S. 422, 432-33 (1982). Indeed, only when the

object of state action is a “very small number of persons”

who are “ ‘exceptionally affected, in each case upon indi-

vidual grounds’” are trial-type procedures called for.

Vermont Yankee Nuclear Power Corp. v. National Resources

Defense Council, 435 U.S. 519, 542 (1978) (quoting United

States v. Florida East Coast R. Co., 410 US. 224, 242, 245

(1973)). In this case, the “interest” identified by the

Supreme Court of Hawaii, if it is a “property interest” at

all, is one that is shared by every single one of the more

1987). The conflict between the decision of the Supreme Court of

Hawaii and the First and Second Circuits in this case is dramatic

and additionally warrants the granting of review in this case.

than twenty thousand beneficiaries of the Hawaiian

Homes Commission Act.

The Supreme Court of Hawaii's decision to impose

trial-type procedures was grounded more in some notion

of “equitable punishment” for state law defects in the

proinulgation of the original “Ten Premises” and for con-

stitutional defects (i.e., vagueness) in the repromulgated

rules than in any established notion of the “process due”

upon the particular asset allocation decisions at issue in

this case. As such, the Court’s response was another

example of the “well-known adage that ‘two wrongs do

not make a right.’ ” Gray v. Mississippi, 481 U.S. 648, 663

(1987). There is no question in the record that Respon-

dents were given a chance orally to comment on the 1990

lot distribution, and Hawaii’s public meetings law -

Chapter 92, Haw. Rev. Stat.? - would require advance

9 Haw. Rev. Stat. §§ 92-3 and 92-7 (1985) provide that:

§ 92-3 Open meetings. Every meeting of all boards

shall be open to the pubic and all persons shall be

permitted to attend any meeting unless otherwise

provided in the constitution or as closed pursuant to

sections 92-4 and 92-5; provided that the removal of

any person or persons who willfully disrupts a

meeting to prevent and compromise the conduct of

the meeting shall not be prohibited. The boards shall

afford all interested persons an opportunity to submit

data, views, or arguments, in writing, on any agenda

item. The boards shall also afford all interested per-

sons an opportunity to present oral testimony on any

agenda item. The boards may provide for reasonable

administration of oral testimony by rule.

§ 92-7 Notice. (a) The Board shall give written

notice of any regular, special, or rescheduled meeting,

or any executive meeting when anticipated in

advance. The notice shall include an agenda which

notice of any decision by the Commission to set aside lots

of a particular size in the Waimea district. Not even this

amount of process, of course, is required by the federal

Constitution. “The entire structure of our democratic gov-

ernment rests on the premise that the individual citizen is

capable of informing himself about the particular policies

lists all of the items to be considered at the forthcom-

ing meeting, the date, time, and place of the meeting,

and in the case of an executive meeting the purpose

shall be stated.

(b) The board shall file the notice in the office of the

lieutenant governor or the appropriate county clerk’s

office, and in the board’s office for public inspection,

at least six calendar days before the meeting. The

notice shall also be posted at the site of the meeting

whenever feasible. No board shall change the ager.da,

once filed, by adding items thereto without a two-

thirds recorded vote of all members to which the

board is entitled; provided that no item shall be

added to the agenda if it is of reasonably major

importance and action thereon by the board will

affect a significant number of persons. Items of rea-

sonably major importance not decided at a scheduled

meeting shall be considered only at a meeting contin- _

ued to a reasonable day and time.

addresses of persons who request notification of

meetings and shall mail a copy of the notice to such

persons at their last recorded address no later than

the time the agenda is filed under subsection (b).

Hawaii law defines a “board” as including a “commission,”

such as the Hawaiian Homes Commission, see Haw. Rev. Stat.

§ 92-2(1) (1985), and renders “[a)ny final action taken in viola-

tion of sections 92-3 and 92-7” to be “voidable upon proof of

willful violation.” Executive meetings are narrowly circum-

scribed and would not permit a final decision on such matters as

lot sizes or other spending decisions by the Commission. See id.

§ 92-5.

that affect his destiny,” Atkins v. Parker, 472 U.S. at 131,

and, in this context, “the legislative determination pro-

vides all the process that is due.” Logan, 472 U.S. at

432-33. A writ should issue.

CONCLUSION

For the foregoing reasons, the Court should grant the

Petition for Certiorari and reverse or vacate the judgment

of the Supreme Court of Hawaii granting judgment to

Respondents on their procedural Due Process claim. The

Court may wish to hold this Petition pending the disposi-

tion in Sandin v. Conner, No. 93-1911 (U.S. argued Feb. 28,

1995). In any case, however, the Court should grant cer-

tiorari in this case of vast public importance.

Dated: Honolulu, Hawaii, June 12, 1995.

Respectfully submitted,

Marcery S. BRONSTER

Attorney General

State of Hawaii

STEVEN Scott MICHAELS*

First Deputy Attorney General

State of Hawaii

*Counsel of Record

CHARLEEN M. AINA

Girarp D. Lau

Deputy Attorneys General

State of Hawaii

425 Queen Street

Honolulu, Hawaii 96813

(808) 586-1292

Counsel for Petitioners

Hawaiian Homes

Commission, et al.

App. 1

APPENDIX A

IN THE SUPREME COURT OF THE

STATE OF HAWAI'I

THE AGED HAWAIIANS, an unincorporated

association, Plaintiffs-Appellants, y. HAWAIIAN

HOMES COMMISSION; KALI WATSON, in his

Capacity as Chairman-designate of the Hawaiian

Homes Commission;! ANDREW APANA, NANI

“" ANDT, ROCKNE PREITAS, DENNIS

nAUAHI, LLEWELLYN KUMALAE, ANN

NATHANIEL AND PATRICIA SHEEHAN, in

their capacities as members of the Hawaiian

Homes Commission; and THE DEPARTMENT

OF HAWAIIAN HOME LANDS, Defendants-

Appellees

1 The present action was initially instituted on July 17, 1989

against Ilima Pi’ianaia, then-Chairman of the Hawaiian Homes

Commission, and Commissioners Andrew Apana, Nani Brandt,

Edison Keomaka, Alvina Park, George Robertson and Walter

Smith, Jr. After the 1994 general election, and while the case was

pending before us, newly elected Governor Benjamin Cayetano

appointed Kali Watson to succeed former Chairperson Hoaliku

Drake (who had earlier replaced Pi’ianaia) as Chairman of the

Hawaiian Homes Commission as of January 1, 1995, subject to

the advice and consent of the Senate. See Haw. Const. art. V, § 6,

{ 2 (1978). Pursuant to Hawai‘i Rules of Appellate Procedure

(HRAP) Rule 43(c)(1), Watson has been substituted automat-

ically for Pi’ianaia as a defendant in the instant case. Similarly,

Freitas, Kauahi, Kumalae, Nathaniel and Sheehan have been

automatically substituted as Commissioners who were nomi-

nated and appointed in accordance with HRS § 26-34 (1985).

One seat on the Commission, designated for a resident of ‘Oahu,

remains vacant after the resignation of Robert McFarlane.

App. 2

NO. 16974

APPEAL FROM THE THIRD CIRCUIT COURT

(CIV. NO. 89-244)

March 14, 1995

MOON, C.J., KLEIN, LEVINSON, NAKAYAMA, AND

RAMIL, JJ.

OPINION OF THE COURT BY KLEIN, J.

The Aged Hawaiians, an unincorporated association

that includes native Hawaiian beneficiaries under the

Hawaiian Homes Commission Act (HHCA),? appeal from

the third circuit court’s order granting in part and deny-

ing in part a motion by the Hawaiian Homes Commission

(Commission), the individually named members of the

Commission, and the Department of Hawaiian Home

Lands (DHHL) (collectively the Appellees) to dismiss the

Aged Hawaiians’ Second Amended Complaint, or alter-

natively, for summary judgment. Although the factual

and procedural elements presented in this appeal are

complex, the fundamental issue is whether the circuit

court properly dismissed the Aged Hawaiians’ federal

claims under 42 U.S.C. § 1983.

2 See HHCA, 1920; Act of July 9, 1921, c. 42, 42 Stat. 108

(codified as amended at 48 U.S.C. note prec. § 491 (1988) and

Haw. Const. art. XII, § 1), reprinted in 1 Haw. Rev. Stat. 167 (1985)

and 1 Haw. Rev. Stat. 39 (Supp. 1992) (herafter, the HHCA will

be cited as reprinted in Haw. Rev. Stat.).

App. 3

I. BACKGROUND

At the inception of the Hawaiian homelands pro-

gram, the Commission was given control over approx-

imately 200,000 acres of land from which it was to create

homesteads for native Hawaiian beneficiaries. The

HHCA created three categories of homestead lots: agri-

cultural, pastoral, and residential. See 1 Haw. Rev. Stat.

167, 182 (1985) (HHCA, 1920, § 207(a)). This case focuses

on the Commission’s administration of homelands in the

pastoral category.

In 1952, the Commission withdrew 18,000 acres of

pastoral land, including portions of Pu’ukapu on the Big

Island of Hawai’i, from general leasing (i.e., leases to

non-beneficiaries under HHCA § 204) for homesteading.

The Commission then selected 187 out of 427 Original

applicants as the “best qualified” potential pastoral les-

sees (i.e., those with the maximum chance of success at

commercial ranching) and placed them on a waiting list.

Forty-eight pastoral homestead lots ranging in size from

200 to 300 acres were awarded to those at the top of that

waiting list. The Commission decided not to award lots

on the remaining portions of the Pu’ukapu homestead

lands “until it [could] be determined whether the rainfall

in the vicinity [could] Support individual small ranches.”

While many native Hawaiian beneficiaries remained on

the waiting lists for homestead lots, much of the acreage

was instead used for general leasing, ostensibly in order

to raise revenue to Prepare the land for homesteading.3

3 As of 1989, according to a DHHL annual report, at least

44,000 acres of pastoral land on the Big Island of Hawai'i were

App. 4

Eventually, as part of its 1987 Raw Lands Accelera-

tion Program, the Commission adopted a policy to award

pastoral lots of no more than 100 acres based on a “sub-

sistence ranching” concept designed to enable native

Hawaiian homesteaders to supplement their family

needs. Although no awards were made under this subsis-

tence ranching policy, which formally expired at the end

of 1987, the Commission continued to analyze possible

future pastoral awards based on this policy.

On July 25, 1988, James Akiona submitted a petition

to the Commission seeking a contested case hearing.* He

hoped to (1) “present evidence of [his] desire and capa-

bility to engage in commercial ranching activities at

Pu’ukapu” and (2) challenge the potential issuance of

subsistence ranching leases because such awards would

be inconsistent with HHCA §§ 207 and 219.1.5 On

not native Hawaiian homesteaders. In 1956, the waiting list was

cancelled without notice to the beneficiaries. During the period

from 1956 to 1983, when the waiting list was finally reinstated,

the Commission awarded seven pastoral lots in Waimea to per-

sons who were not on the list.

Since the inception of the program in 1920, the Commission

has awarded only about 38,000 acres to native Hawaiian home-

steaders (in the agricultural, pastoral and residential classes

combined) out of the approximately 187,000 acres that were

potentially available for all types of homesteading. Additional

acreage was added at the end of 1994 to make the trust corpus

whole at a little more than 200,000 acres.

* At some unknown point before or after Akiona made this

request, the individual preceding him on the waiting list passed

away.

5 1 Haw. Rev. Stat. 167, 182-83 (1985) (HHCA, 1920,

§§ 207(a) and (b)) provides, in pertinent part:

December 20, 1988, while Akiona’s

the Commission adopted “ten prem

App. 5

its pastoral development program.®

(Emphasis added.) 1 Haw. Rev. Sta

Leases to Hawaiians, licenses. (a) The department is

authorized to lease to native | lawaiians the right to

the use and occupancy of a tract or tracts of Hawaiian

home lands within the following acreage limits per

each lessee: (1) not more than forty acres of agricul-

ture lands or lands used for aquaculture purposes; or

(2) not more than one hundred acres of irrigated pastoral

lands and not more than one thousand acres of other pas-

toral lands; or (3) not more than one acre of any class

of land to be used as a residence lot... . .

(b) The title to lands so leased shall remain in

the [State]. Applications for tracts shall be made to

and granted by the department, under such regula-

tions, not in conflict with any provisions of this title, as

the department may prescribe. The department shall,

whenever tracts are available, enter into such a lease

with any applicant who, in the opinion of the depart-

ment, is qualified to perform the conditions of such

lease.

1920, § 219.1) provides:

rule under Hawai'i Revise

General assistance. The department is authorized to

Carry on any activities it deems necessary to assist the

lessees in obtaining maximum utilization of the

leased lands, including taking any steps necessary to

develop these lands for their highest and best use

commensurate with the purposes for which the land

is being leased as provided for in section 207, and

assisting the lessees in all phases of farming, ranch-

ing, and aquaculture operations and the marketing of

their agricultural or aquacultural produce and live-

stock.

request was pending,

ises” or guidelines for

t. 167, 201 (1985) (HHCA,

d Statutes [HRS] chapter 91, pursuant

to an order by the third circuit court dated October 4, 1989.

On February 21, 1989, the Commission notified

Akiona that it had denied his contested case hearing

App. 6

Hawai’i Administrative Rule (HAR) § 10-3-29, entitled “Consid-

erations for pastoral homestead development,” provides that

“liJn developing pastoral lots for homestead award, the depart-

ment shall consider”:

(1)

(2)

(3)

(4)

(5)

(6)

(7)

(8)

That the awarding of pastoral homestead lots is

to provide opportunities for a lifestyle which

includes allowing for production of livestock to

satisfy family needs and supplement family

income.

That the needs of applicants on the entire pas-

toral waiting list will be considered in the

awarding of pastoral homestead leases.

That there are competing demands for pastoral

homestead development, including demands

for residential and agricultural homesteads as

well as land for commercial ranching uses.

That basic infrastructure improvements for pas-

toral homestead lots such as suitable access,

water, and utilities should be available.

That the cost per lot for infrastructure improve-

ments for pastoral homestead lots will be com-

parable with that of residential and agricultural

homestead lots. On-going maintenance costs

are a factor in this cost per lot equation.

That a minimum pastoral homestead lot size

will be based on the land’s natural carrying-

capacity to support a minimum of two animal

units of beef livestock.

That the regional character of communities is

important in defining the type and size of

homestead lease as similar types of develop-

ment in the region offer models of what can be

done with land for development.

That the determination of pastoral homestead lot

size be based on the land’s natural carrying-capac-

ity for beef animals, infrastructure development

App. 7

request. The Commission determined that there was no

basis for granting the request because (1) the Commission

had not yet initiated any action on Akiona’s application

for a pastoral homestead lease, (2) there was no substance

to support the petition, and (3) a contested case hearing

would be inappropriate. Later, the Commission proposed

to offer 195 lots (ranging in size from five to twenty acres)

on 3,000 acres of Pu’ukapu lands, which were to be

awarded in early summer 1989 in accordance with the

Commission’s “ten premises” rule.”

costs, regional character and beneficiary demand

identified through the waiting list.

(9) That opportunities for native Hawaiians to

develop commercial ranching opportunities be

provided.

(10) That the homestead lease in its current form

presents difficulties in financing for commercial

ranching operations.

The Commission acknowledged that these premises each

have definite implications for pastoral homesteading. For exam-

ple, through the first premise, “DHHL is indicating that it is not

awarding ‘economic’ pastoral units [i.e., lots capable of support-

ing commercial ranching]. Rather, it is awarding entitlements

which allow for the raising of livestock to satisfy family needs

for consumption and for supplementary income. An ‘economic

unit’ by today’s standards may consist of 1,000 acres or more of

unirrigated pasture.” The ninth premise indicates that “DHHL

is aware that there are native Hawaiian organizations who

desire to develop commercial ranching operations. This premise

recognizes this fact and mandates DHHL to identify lands

which should be set aside for commercial ranching by Native

Hawaiians.”

7 In September 1989, the Commission downsized the

Pu’ukapu pastoral development plan to 166 lots ranging from

10 to 20 acres in an attempt to place on the land all surviving

beneficiaries from the original 1952 waiting list.

App. 8

On July 17, 1989, Akiona and the Aged Hawaiians

filed a complaint for declaratory and injunctive relief in

the third circuit court. On August 31, 1989, Akiona and

the Aged Hawaiians moved for partial summary judg-

ment on their claim that the “premises” were rules requir-

ing compliance with the official notice-and-comment

provisions of HRS chapter 91. The motion was granted on

October 4, 1989, and the trial court issued an order

enjoining future pastoral lot awards until the commission

complied with chapter 91. On January 30, 1990, the circuit

court denied a motion by Akiona and the Aged Hawai-

ians dated December 26, 1989, in which they sought

summary judgment and a permanent injunction with

respect to their remaining claims. On the same day, the

circuit court also denied their December 28, 1989 motion

seeking certification as a class action on behalf of all

qualified beneficiaries “who seek a pastoral homestead

lot large enough to allow them to become economically

self-sufficient by ranching.”

Notwithstanding what the Appellees characterize as

“serious deficiencies” in the circuit court’s October 4,

1989 decision, the Commission and DHHL formally

adopted a rule containing the ten premises on May 22,

1990. See HAR § 10-3-29, supra note 6. At the public

hearings held by the Commission prior to this rule-mak-

ing action, the Aged Hawaiians submitted an alternative

procedural proposal for awarding pastoral homestead

lots. The Commission declined to adopt the Aged Hawai-

ians’ proposal, but voted unanimously: “[to] address the

concerns of those native Hawaiians who have the capa-

bility to commercial ranch [sic]; that these native Hawai-

ians be given the opportunity to do so; and, that [DHHL]

App. 9

present to [the Commission] a proposal to effectuate com-

mercial ranching.” However, the Commission did not

suspend the awarding of lots until the DHHL could pre-

pare a proposal, and the record does not indicate that the

DHHL has ever presented such a proposal.

On July 31, 1990, a mere ten days after HAR § 10-3-29

was approved by the Governor, the Commission adopted

its 1990 pastoral lot size plan (1996 Plan). The Commis-

sion took this action without consulting the Aged Hawai-

ians or Akiona, despite their repeated requests for

information and attempts to secure an Opportunity to

comment. The only substantive change from the 1990

Plan’s predecessor was the addition of eight 100 acre and

eight 200 acre lots at Pu’ukapu, plus twenty-two unim-

proved homestead lots of Ka’u (seventeen lots at twenty-

five acres each) and Humu’ula (five lots at 100 acres

each).§ The larger lots were not created as “economic

units,” see supra note 6, but as “good faith responses” to

8 According to the Appellees, they rejected an alternative

plan to award “one or two thousand acre lots” based on infor-

mation that “ ‘commercial-scale ranching’ is economically

impossible in the absence of at a minimum of a full 1,000 acre

award[.]” There is a factual dispute, however, on the issue of

feasibility. A current homesteader operates a successful com-

mercial ranch on a 305-acre lot, as do other pastoral homestead

lessees. DHHL was aware of these enterprises as early as 1985,

and apparently reported these facts to the Los Angeles Times.

Furthermore, expert testimony presented by the Aged Hawai-

ians’ witnesses indicates that commercial ranching in this area

would be feasible on 400 to 900 acres. See also discussion of

legislative history concerning increased carrying Capacity asso-

ciated with the use of intensive ranching techniques, infra sec-

tion III.B.4.

App. 10

the desires of those beneficiaries who sought commercial

ranching opportunities.

On August 23, 1990, Akiona and the Aged Hawaiians

filed two motions: (1) seeking a preliminary injunction to

prevent DHHL from awarding subsistence pastoral lots

under the 1990 Plan, and (2) seeking to amend their

complaint. In denying the motion for preliminary injunc-

tion, the circuit court held that the Aged Hawaiians’

members would

not be irreparably harmed [because] their prior-

ity status [assures] that they will be offered lots

and they will still be able to litigate the remaining

issues in this case. The issue of whether [the Aged

Hawaiians] are likely to prevail on the merits is a

close question; the public interest favors the

awarding of the lots to the beneficiaries.

“Order Denying Motion for Preliminary Injunction; Order

Granting Motion to Amend Complaint,” dated September

4, 1990. (Emphasis added.)? The Aged Hawaiians’ first

9 The court’s decision to deny injunctive relief is under-

standable given the fact that at least one family suffered irrepar-

able harm as a result of delays caused by the litigation. An

applicant on the waiting list died sometime between the Octo-

ber 4, 1989 court order enjoining future pastoral homestead lot

awards and the court’s September 4, 1990 order denying Akiona

and the Aged Hawaiians’ motion to enjoin implementation of

the 1990 Plan. Although this deceased applicant named his

daughter as successor — based on her 25% Hawaiian blood, she

would have qualified to succeed in the leasehold interest if it

had been awarded -— she did not qualify for an award in her own

right (50% Hawaiian blood required).

The September 21, 1990 first amended complaint primarily

addressed the changed circumstances accompanying adoption

and implementation of the 1990 Plan.

App. 11

amended complaint, which was dated September 21,

1990, addressed the changed circumstances accompany-

ing adoption and subsequent implementation of the 1990

Plan, and also asserted jurisdiction under HRS § 91-14.

On September 15, 1990, those on the waiting list selected

all of the available lots, with the first twenty-one appli-

cants (including Akiona) allowed a right of first refusal

upon the 100 and 200 acre lots.

On September 18, 1990, Akiona and the Aged Hawai-

ians filed their third motion for summary judgment,

which included a request for permanent injunctive relief.

The Commission’s Chairperson, Hoaliku Drake,

responded by sending a letter dated September 21, 1990

to the awardees notifying them of the pending litigation.

This letter informed the awardees that the lawsuit by

Akiona and the Aged Hawaiians sought “to prohibit the

department from issuing you your pastoral lease .. . and

challeng[es the Commission’s] July 31, 1990[ ] action

authorizing the award of the Pastoral lots selected on

September 15, 1990[.]” One week after Drake wrote her

letter, Akiona withdrew from the litigation by stipulation

of the parties.10 Although a hearing on the motion for

summary judgment was scheduled to take place on Sep-

tember 28, 1990, the record does not indicate that any

action was taken. Evidently, the remaining parties instead

entered into consensual mediation in an unsuccessful

effort to settle the suit.

10 Akiona apparently withdrew after receiving “threats of

physical harm.”

App. 12

In the ensuing months, the Aged Hawaiians

amended their complaint once again,!! requested answers

to interrogatories, and sought the production of docu-

ments by the Appellees. Thereafter, on January 15, 1992,

the Aged Hawaiians filed their fourth motion for sum-

mary judgment, again requesting permanent injunctive

relief. In this motion, the Aged Hawaiians sought:

1) [a declaration] that the . . . Commission

violated the due process rights of the [Aged

Hawaiians] by failing to: (a) provide them with

adequate notice of its July 31, 1990 decision

determining when, where, and how much pas-

toral land to award at Pu’ukapu to those on the

applicable wait list; and (b) afford them the

opportunity to request that an evidentiary hear-

ing be held on [the Commission’s] pastoral lot

award plan prior to it being adopted on July 31,

1990, in accordance with [HRS] Chapter 91;

2) [a declaration] that pursuant to Sections

207(a), 219.2, and 222 of the HHCA the. . . Com-

mission has a duty to make sufficient land avail-

able to [the Aged Hawaiians] and all those like

them desiring to commercially ranch on home-

stead land, in the order of priority established

by the appropriate pastoral waiting list;

3) [a declaration] that [HAR § } 10-3-29 is

void for vagueness because it provides no clear

ascertainable standards by which a beneficiary

11 The Appellees stipulated to this amendment. The August

2, 1991 second amended complaint removed Akiona as a named

party and replaced the first amended complaint’s assertion of

jurisdiction under HRS § 91-14 with the original complaint’s

citations to: HRS §§ 91-7, 603-21.5, 632-1, 661-1, 673-2(a) and (c),

and 42 U.S.C. § 1983.

App. 13

may, prior to the adoption of a pastoral lot

award plan, petition for, and receive upon a

proper showing, pastoral land of sufficient size

to commercially ranch.

4) [a declaration] that under the HHCA,

the Commission is under a trust duty to imme-

diately withdraw lands currently under general

lease to private ranchers at Humu’ula,

Pi’ihonua, Kahua and other appropriate areas in

order to make more land available to native

Hawaiians on the pastoral waiting list;

5) [a declaration] that [Appellees] are vio-

lating 42 U.S.C. Section 1983 by (a) continuing to

refuse [the Aged Hawaiians] and other pastoral

lot applicants notice and an opportunity for a

contested case hearing in advance of their deci-

sion to make pastoral lot awards; and (b) fore-

closing any future Opportunity for [the Aged

Hawaiians] and other pastoral lot applicants to

obtain a homestead lot award which can pro-

vide them the opportunity to become economi-

cally self-sufficient; and

6) [to permanently enjoin Appellees] from

withholding the opportunity for beneficiaries on

the pastoral waiting list to obtain pastoral

homestead lots of sufficient size to allow lessees

a chance to earn a living by ranching commer-

cially;

7) [to prospectively enjoin] the Commis-

sion from awarding any pastoral lot award to

beneficiaries other than the September 1990 lot

selectees until and unless it complies with the

due process clauses of the U.S. and Hawai'i

State Constitutions, and [HRS] Chapter 91;

App. 14

8) [an order that Appellees]: (a) plan and

develop for court approval a timetable to survey

the needs of the appropriate beneficiaries on all

pastoral waitlists statewide; and (b) make

opportunities available to Plaintiff THE AGED

HAWAIIANS, and those desiring economic self-

sufficiency on a pastoral homestead lot, to

obtain sufficient land of no more than 1,000

acres of unirrigated, or no more than 100 acres

of irrigated, pasture land on the island of

Hawai'i in the order set by the appropriate wait-

ing list; [and]

9) [an award of] attorneys’ fees pursuant

to 42 U.S.C. § 1988.12

On the same date, the Appellees filed a motion to dismiss

the complaint, or alternatively, for summary judgment.13

Ultimately, on August 25, 1992, the third circuit court

issued an order granting in part and denying in part the

Appellees’ motion to dismiss, finding that:

2 The Aged Hawaiians’ request for relief was also made

“as a matter of equity in light of [the Appellees’] 40-year uncon-

scionable delay in awarding pastoral lots capable of providing

beneficiaries on the 1952 Waimea Wait List with the opportunity

to commercially ranch, and since there is no adequate remedy at

law.”

13 As summarized by the circuit court ina subsequent order

dated March 2, 1993, the Appellees’ January 15, 1992 “motion

for dismissal [or in the alternative for summary judgment] was

based on [the Aged Hawaiians’] failure to request a contested

case hearing before filing their complaint and thus [the Aged

Hawaiians] had failed to exhaust their administrative remedies

before seeking relief pursuant to 42 U.S.C. § 1983 and H.R.S.

Chapter 91.”

App. 15

all of [the Aged Hawaiians’] claims in this case,

with the exception of its claim under section

91-7, H.R.S., relating to the validity of section

10-3-29, [Hawai’i] Administrative Rules, are sus-

ceptible to the initial administrative resolution

provided in the [Hawai'i] Administrative Pro-

cedures Act by way of a contested case hearing

before the . . . Commission. The court further

finds that the [DHHL] has adopted formal pro-

cedures for contested case hearings established

by agency rules and the [Aged Hawaiians have]

not filed a written request for a contested case

hearing, thus failing to follow administrative

procedures.

Moreover, the court finds that [the Aged

Hawaiians] still [have] open to [them] adminis-

trative procedures which provide an oppor-

tunity for an agency hearing and meet the

statutory demand for specific procedures cul-

minating in judicial review and that judicial

review herein is not available under the Doc-

trine of Exhaustion of Administrative Remedies

until the administrative process has run its

course.

Based on the foregoing, . . . (1) [the Com-

mission and DHHL’s] Motions with respect

to... the claim under [§ 91-7] relating to the

validity of [HAR] section 10-3-29 . . . are hereby

DENIED; and, (2) [the Commission and

DHHL’s] Motions as to all other claims . . . are

hereby GRANTED and all claims, with the excep-

tion of the claim under [§ 91-7], are hereby DIS-

MISSED.

(Citations omitted and emphasis added.)

App. 16

On September 1, 1992, the circuit court issued a sepa-

rate order granting in part and denying in part the Aged

Hawaiians’ fourth motion for summary judgment. In this

order, the court found HAR § 10-3-29 void for vagueness,

but reserved jurisdiction to consider “whether its subse-

quent declaratory ruling should require [the Commis-

sion] to include a procedure and timetable for the return

of trust lands leased to non-beneficiaries.” One week

later, the Aged Hawaiians filed a motion seeking to alter

or amend the court’s August 25, 1992 judgment with

respect to their § 1983 claims, citing Felder v. Casey, 474

U.S. 1037 (1985). On October 8, 1992, the circuit court

issued an amended order that merely included the alter-

native ground of primary jurisdiction as an additional bar

to the Aged Hawaiians’ request for relief.

The Aged Hawaiians subsequently filed a motion on

October 27, 1992 seeking certification of the court’s Octo-

ber 8, 1992 amended order, under Hawai'i Rules of Civil

Procedure (HRCP) Rule 54(b) (1991). The third circuit

court granted the Aged Hawaiians’ motion by order filed

March 2, 1993. On March 29, 1993, the Aged Hawaiians

timely served notice of the present appeal from the circuit

court’s October 8, 1992 order.

II. APPROPRIATENESS OF CERTIFICATION UNDER

HRCP RULE 54(b).

As a preliminary matter, the Appellees contend that

the circuit court abused its discretion when it certified the

October 8, 1992 order as final pursuant to HRCP Rule

App. 17

54(b).14 The Appellees assert that this order did not actu-

ally dismiss any claims. Because our jurisdiction to con-

sider this appeal is based on the HRCP Rule 54(b)

certification, we must address this issue at the outset. See

Bush v. Hawaiian Homes Comm'n, 76 Hawai'i 128, 133, 870

P.2d 1272, 1277 (1994).

One of the “prerequisite[s] under [HRCP] Rule 54(b)

is that at least one claim . . . must be fully decided.” TBS

Pacific, Inc. v. Tamura, 5 Haw. App. 222, 228, 686 P.2d 37,

43, reconsideration denied, 5 Haw. App. 683, 753 P.2d 253,

aff'd mem. op., 67 Haw. 682, 744 P.2d 778, reconsideration

denied, 67 Haw. 684, 744 P.2d 780 (1984). A fully decided

but not final judgment, decree, or order becomes final

and appealable . . . “[u]Jpon the court’s (1) determination

that there is no just reason for delay and (2) direction for

the entry of a final judgment pursuant to Rule 54(b)[.]” 5

Haw. App. at 228, 686 P.2d at 43. In the instant case, the

October 8, 1992 order specifically dismissed all of the

Aged Hawaiians’ claims with the exception of their HRS

§ 91-7 claim. One of the dismissed claims involves the

alleged deprivation of federal rights under 42 U.S.C.

§ 1983,15 based on Appellees’ failure to provide the Aged

14 HRCP 54(b) provides in pertinent part:

When more than one claim for relief is presented in an

action . . . the court may direct the entry of final

judgment as to one or more but fewer than all of the

claims or parties only upon an express determination

that there is no just reason for delay and upon an

express direction for the entry of judgment.

15 Title 42 U.S.C. § 1983 provides in relevant part:

Every person who, under color of any statute, ordi-

nance, regulation, custom, or usage, of any State...

App. 18

Hawaiians with a reasonable opportunity to obtain a

pastoral homestead. award of sufficient size to support

commercial ranching.!6 The remaining HRS § 91-7 claim

involves a facial challenge to the validity of an agency

rule, HAR § 10-3-29, on the ground that it sets forth no

discernible standards for the Commission to follow in

making homestead awards.!”

Because the circuit court “made specific findings set-

ting forth the reasons for its order” dismissing the Aged

subjects, or causes to be subjected, any citizen of the

United States . . . to the deprivation of any rights,

privileges, or immunities secured by the Constitution

and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper proceed-

ing for redress.

16 In other words, the § 1983 element of the Aged Hawai-

ians’ claim is that the Commissioners, under color of state law

(the HHCA and HRS chapter 91), deprived their members of

due process rights under the United States Constitution and

their federal statutory rights under the HHCA, as incorporated

by the Hawai’i Admission Act.

17 Although the court reserved jurisdiction to determine

whether the Commission should provide for the return of trust

lands leased to non-beneficiaries, that issue is distinct from the

question whether Appellees must provide HHCA beneficiaries

with an opportunity to apply for a pastoral homestead lot of

sufficient size for commercial ranching. It is true that once land

is set aside, its availability creates an “opportunity” in the

abstract. However, even if the circuit court orders the return of

these lands, it will not have determined whether the DHHL

must, consistent with the HHCA and overlying trust principles,

provide a procedure in its rules to consider granting pastoral

homestead lots of sufficient size for commercial ranching. Thus,

the remaining § 91-7 claim clearly does not encompass the Aged

Hawaiians’ due process claims under 42 U.S.C. § 1983.

App. 19

Hawaiians’ federal claims, we “must give substantial def-

erence to the lower court’s discretion in determining

whether an immediate appeal shall lie[.]” Morrison-

Knudsen Co. v. Archer, 655 F.2d 962, 965 (9th Cir. 1981).

Moreover, we agree that the Aged Hawaiians’ claims

under § 1983 are “severable” from the remaining unad-

judicated claim involving HRS § 91-7 and HAR § 10-3-29.

Cf. Morrison, 655 F.2d at 966 (vacating certification under

Federal Rules of Civil Procedure 54(b) because the dis-

missed claims were “inseverable, both legally and factu-

ally, from claims that remain unadjudicated”).

Ill. DISCUSSION

The Aged Hawaiians argue that the circuit court

erred when it concluded that the doctrines of primary

jurisdiction and exhaustion of administrative remedies

bar their claims under 42 U.S.C. § 1983. The Appellees’

response is multi faceted:

1) certification was improvidently granted

because the issues raised herein are related

to the Aged Hawaiians’ remaining claims

under HRS § 91-7;

2) the issues are not ripe because the Aged

Hawaiians have a meaningful chance to

obtain contested case hearings;

3) abstention is proper under the primary

jurisdiction doctrine where the Commission

has discretion to determine whether home-

stead lands are required for leasing under

HHCA § 207;

App. 20

4) the Aged Hawaiians association is an

improper institutional litigant;

5) the Aged Hawaiians have no private federal ©

cause of action under § 1983 or, if such a

claim exists, that there is insufficient evi-

dence to support it; and

6) the Commission did not violate the Aged

Hawaiians’ due process rights because the

Aged Hawaiians do not have a property

interest in an “economic unit” award (and,

in any event, there is no entitlement at all

until an individual has “acquired .

specific benefits”); in the alternative, the

Commission provided sufficient process in

the circumstances.

The first argument was addressed previously, see supra

section II, the next three are jurisdictional, see infra sec-

tion III.A, and the last two focus on the merits of the

Aged Hawaiians’ claims. See infra sections I1.B and III.C.

A. JURISDICTION AND JUSTICIABILITY

The circuit court dismissed the Aged Hawaiians’ fed-

eral claims on jurisdictional grounds. In its October 8,

1992 order, the court ruled that “judicial review . . . is not

available under the Doctrines of Primary Jurisdiction and

Exhaustion of Administrative Remedies until the admin-

istrative process has run its course.”

App. 21

1. Exhaustion of Administrative Remedies and

the Doctrine of Primary Jurisdiction

The United States Supreme Court expressly held, in

Patsy v. Florida Board of Regents, 457 U.S. 496 (1981), that

“exhaustion of administrative remedies [is] not required

as a prerequisite to bringing an action pursuant to

§ 1983.” Id. at 516. It is “plain that Congress never

intended that those injured by governmental wrongdoers

could be required, as a condition of recovery, to submit

their claims to the government responsible for their inju-

ries.” Felder v. Casey, 487 U.S. 131, 142 (1987). Therefore,

to the extent that the circuit court relied upon the doc-

trine of exhaustion, its decision was erroneous.

“[P]rimary jurisdiction is closely related to the doc-

trine of exhaustion of administrative remedies.” B.

Schwartz, Administrative Law § 8.30 (2d ed. 1984). The

main difference, however, is that:

“Primary jurisdiction” . . . applies where a

claim is originally cognizable in the courts, and

comes into play whenever enforcement of the

claim requires the resolution of issues which,

under a regulatory scheme, have been placed

within the special competence of an administra-

tive body[.] United States v. Western Pac. R.R.,

352 U.S. 59, 63-64 (1956). When this happens,

“the judicial process is suspended pending

referral of such issues to the administrative

body for its views.” Id. at 64[.]

App. 22

Kona Old Hawaiian Trails Group v. Lyman, 69 Haw. 81, 93,

734 P.2d 161, 168 (1987).18 The primary jurisdiction doc-

trine is designed to promote uniformity and consistency

in the regulatory process. Western Pacific R.R., 352 U.S. at

64. The doctrine does not apply where a pure question of

law is at issue and technical matters calling for the special

competence of the administrative expert are not involved.

Id. at 66. Primary jurisdiction also does not apply where

the agency has already rendered its views. Id. at 69.

The Appellees contend that we should apply the

primary jurisdiction doctrine in the instant case because

it is consistent with federal principles of abstention.19 We

are not persuaded. Deference to an agency is particularly

inappropriate in cases like this one, in which the constitu-

tionality of the agency’s rules and procedures is chal-

lenged and questions are raised as to whether the agency

has acted within the scope of its authority. The agency is

not empowered to decide these questions of law. Great

Northern Ry. v. Merchants Elevator Co., 259 U.S. 285, 291

(1922) (reaffirmed in Western Pacific R.R., 352 US. at 69).

18 “Exhaustion,” on the other hand comes into play “where

a claim is cognizable in the first instance by an administrative

agency alone; judicial interference is withheld until the admin-

istrative process has run its course.” Kona Old Hawaiian Trails, 69

Haw. at 93, 734 P.2d at 168 (citing Western Pacific R.R., 352 U.S. at

63).

19 The Appellees argue that if this case had been brought in

federal court, abstention under Burford v. Sun Oil Co., 319 U.S.

315, reh’g denied, 320 U.S. 214 (1943), would apply. Conse-

quently, the Appellees contend that application of the primary

jurisdiction doctrine in state court would not impermissibly

“adulterate or dilute the predominant feature of the federal

right[.]” Felder, 487 U.S. at 148.

App. 23

Furthermore, the Appellees have already used their spe-

cialized knowledge and expertise to construe the relevant

statutory provisions. Accordingly, we hold that the circuit

court erred in dismissing the Aged Hawaiians’ claims

based on the primary jurisdiction doctrine.

2. Finality/Ripeness

Notwithstanding our conclusion in section III.A.1,

supra, the Appellees essentially argue that the circuit

court’s decision was right for the wrong reason because

additional procedures are available within the agency to

address the Aged Hawaiians’ claims for relief or other

appropriate action. For example, now that leases have

been issued, HAR § 10-3-25(a) provides that a “[l]essee of

an agricultural or pastoral lot may apply for additional

acreage of the same class.” In other words, the Appellees

urge that the Commission’s rules “leave[] open the possi-

bility” that additional pastoral acreage may eventually be

made available to lessees, including members of the Aged

Hawaiians, so that they can engage in commercially via-

ble ranching activities. Thus, citing Williamson County

Regional Planning Commission v. Hamilton Bank, 473 U.S.

172, 193-94 (1984), the Appellees argue that the Aged

Hawaiians’ § 1983 claims have not yet ripened and the

circuit court’s order from which they have appealed is

not “final.” »

In Hamilton Bank, a case involving a Tennessee plan-

ning commission’s refusal to approve a proposed devel-

opment project, the United States Supreme Court held

that “the Commission’s denial of approval . . . is not a

final, reviewable decision.” Id. at 194. On the other hand,

App. 24

resort to the procedure for obtaining variances would

[have] result[ed] in a conclusive determination by

the Commission [as to] whether it would allow

[Hamilton Bank] to develop the subdivision in

the manner [it] proposed. The Commission’s

refusal to approve the preliminary plat does not

determine that issue; it prevents [Hamilton

Bank] from developing its subdivision without

obtaining the necessary variances, but leaves

open the possibility that [Hamilton Bank] may

develop the subdivision according to its plat

after obtaining the variances.

Id. at 193-94 (emphasis added). The Appellees essentially

contend that the Aged Hawaiians should be barred from

obtaining judicial review because HAR § 10-3-25(a) pro-

vides an opportunity for the agency to consider requests

for additional pastoral land.

To the extent that the Appellees rely instead upon the

Commission’s discretionary power to grant a contested

case hearing whenever it determines that one should be

held, see HAR § 10-3-32(b), the Commission has already

demonstrated its resistance to such hearings through its

dealings with Akiona.

In any event, notwithstanding the Court’s decision in

Hamilton Bank, “[i]t is not at all clear that the . . . reappl-

ication requirement should apply to substantive due pro-

cess claims . . . [or that it should apply] in precisely the

Same manner as in the takings context.” Greenbriar, Ltd. v.

City of Alabaster, 881 F.2d 1570, 1576 n.11 (11th Cir.) (citing

Herrington v. Sonoma County, 857 F.2d 567, 570 (9th Cir.

1988), amending 834 F.2d 1488 (9th Cir. 1987), cert. denied,

County of Sonoma v. Herrington, 489 U.S. 1090 (1989)), reh’g

denied, 893 F.2d 346 (11th Cir. 1989). In the context of

App. 25

regulatory takings claims, the reapplication requirement

makes sense because it allows the court to decide

whether the agency action went “too far[.]” Pennsylvania

Coal Co. v. Mahon, 260 U.S. 393, 415 (1922). Unless denial

of an initial application somehow indicates that an

agency will not permit any development, or any other

“economically viable” use, the takings analysis cannot be

performed until final administrative action has taken

place. On the other hand, “the focus of due process

analysis is . . . whether it was irrational for [the Commis-

sion] to have [adopted the 1990 Plan in conjunction with

HAR § 10-3-29] and to have applied it to [the Aged

Hawaiians].” Eide v. Sarasota County, 908 F.2d 716, 724

n.12 (11th Cir. 1990) (emphasis added) (quoting Rogin v.

Bensalem Township, 616 F.2d 680, 689 (3rd Cir. 1980), cert.

denied, 450 U.S. 1029 (1981)), cert. denied, 498 U.S. 1120

(1991). In the context of a due process claim, therefore,

the Commission’s decision to award subsistence pastoral

lots to the Aged Hawaiians is reviewable without further

action.

Whether withdrawal of additional lands would jeop-

ardize the HHCA revenue base and, consequently, the

interests of other HHCA beneficiaries, bears upon the

rationality of the Commission’s decision.”° The existence

of such issues should not, however, operate as a bar to

the Aged Hawaiians’ claims under the doctrine of finality.

Thus, we hold that recourse to an agency’s contested case

procedures is not required as a prerequisite to an action

20 This issue is related, in part, to the factual dispute con-

cerning the feasibility of commercial ranching on lots of less

than 1,000 acres. See supra note 8.

App. 26

for declaratory and injunctive relief of a prospective

nature under 42 U.S.C. § 1983. Accordingly, we adopt the

rationale of the Wyoming Supreme Court in Rogers v. City

of Cheyenne, 747 P.2d 1137 (Wyo. 1987), appeal dismissed,

485 U.S. 1017 (1988), which held thai federal justiciability

standards are inapplicable in state court declaratory judg-

ment actions involving matters of great public impor-

tance. Id. at 1138-39 (rejecting appellant’s non-

justiciability argument based on Hamilton Bank, supra).

Moreover, even if we were to employ the finality

requirement as urged by the Appellees, the doctrine of

futility, see Mathews v. Eldridge, 424 U.S. 319, 330 (1976),

would operate as an exception to the requirement of

seeking additional agency action prior to obtaining judi-

cial review. There is a cruel irony to the Appellees’ claim

that the Aged Hawaiians must wait for final agency

action given the drawn-out history of homestead awards.

When the Commission created the pastoral wait list in

1952, over thirty years after enactment of the HHCA, it

determined that the native Hawaiians on that list were

qualified pastoral homestead applicants. The list included

current members of the Aged Hawaiians who, after wait-

ing almost forty years on the list, selected pastoral home-

stead lots in 1990 rather than wait an additional

undetermined period in the hope that the Commission

would, of its own accord, reconsider the possibility of

awarding larger lots sufficient for commercial ranching.?!

Now it appears that those who seek additional acreage

21 If Akiona had passed up this opportunity to select a lot,

he risked the possibility of dying without receiving an award.

See supra note 4.

App. 27

must go to the bottom of the waiting list. HAR §§ 10-3-7,

10-3-24(a) & 10-3-25(b).?2

The Appellees readily acknowledge that they have

limited resources to make awards to beneficiaries already

on the waiting list. Moreover, the record in this case

reflects that the pastoral waiting list for the island of

Hawai‘i currently contains over 450 names, and in the

past forty years less than 200 awards have been made.

There is no indication in the record that any additional

land will be made “available” in the near future for

homestead awards. Finally, the record indicates that the

members of the Aged Hawaiians are all over seventy

years old. Under these circumstances, requiring the Aged

Hawaiians to wait at the bottom of the waiting list for

additional acreage would be clearly futile.

3. Standing

An alternative jurisdictional challenge proffered by

the Appellees is that the Aged Hawaiians association

does not have standing because the group’s claim is not

redressable. Appellees claim that resolution of the issues

raised in this case requires individualized assessment of

each member’s ability to engage in commercial ranching.

#2 HAR § 10-3-25(b) provides that a lessee seeking addi-

tional pastoral acreage “shall be contacted for an award in

accordance with section 10-3-24(a).” HAR § 10-3-24(a), in turn,

provides that such an applicant “shall be contacted in accor-

dance with section 10-3-7” “[w]hen . . . pastoral lots become

available for award[.]” Finally, HAR § 10-3-7(b) provides that

the DHHL “shall give preference to an applicant who is not a

lessee, or whose spouse is not a lessee.”

App. 28

The Aged Hawaiians respond that our state courts are not

bound by the federal “case or controversy” requirement

when entertaining claims brought under § 1983.

The Aged Hawaiians’ due process rights are indeed

capable of being redressed without inquiring into the

ability of each of its members to engage in commercial

ranching. In Pele Defense Fund v. Paty, 73 Haw. 578, 837

P.2d 1247 (1992), we rejected a similar argument by the

State based upon the “ ‘generalized’ injuries” associated

with an alleged “breach of trust responsibilities

. codified in federal and state law and incorporated

into the Hawaii Constitution.” 73 Haw. at 593-94 & n.9,

837 P.2d at 1258 & n.9. Application of this principle to the

instant case is also consistent with Hunt v. Washington

Apple Advertising Commission, 432 U.S. 333 (1977), which

held that where “the association seeks a declaration,

injunction, or some other form of prospective relief, it can

reasonably be supposed that the remedy, if granted, will

inure to the benefit of those members of the association

actually injured.” 432 U.S. at 343 (citation omitted). Fur-

thermore, the Appellees concede that at least one member

of the association seeks more land for ranching activities.

State law justiciability policies must be applied as the

“needs of justice” require. Life of the Land v. Land Use

Comm’n, 63 Haw. 166, 176, 623 P.2d 431, 439 (1981).

Accordingly, we hold that the Aged Hawaiians have

standing to pursue their claims in the instant case.

App. 29

B. SECTION 1983 BREACH OF TRUST CLAIM

In order to maintain a claim under § 1983, the Aged

Hawaiians must be able to prove that (1) a person acting

under color of state law, (2) subjected them, or is threat-

ening to subject them, to the deprivation of a right under

the United States Constitution or other federal law.

Makanui v. Board of Educ., 6 Haw. App. 397, 404, 721 P.2d

165, 170 (1986). The individual commissioners are clearly

persons who were acting under color of state law. The

dispute in this case, therefore, focuses on the question of

enforceability under § 1983.

The Aged Hawaiians claim that the Appellees have

deprived them of their federal rights under the HHCA

and the Admission Act, as well as the due process clause

of the Fourteenth Amendment to the United States Con-

stitution. We shall address the constitutional due process

issue separately. See infra section III.C. The Appellees

essentially contend that the Aged Hawaiians have failed

to state a claim cognizable under § 1983, arguing that: (1)

the HHCA is a state law and not a federal law; and (2) the

United States Supreme Court's decision in Suter v. Artist

M., 112 S. Ct. 1360 (1992), undermines the existence of a

private right to sue under § 1983 for the enforcement of

breach of trust claims under § 5(f) of the Admission Act.

1. Claims based on the HHCA are matters of

federal law

First, we observe that the HHCA was initially

enacted by Congress. When Hawai'i gained admission to

the Union, the newly formed state accepted responsibility

App. 30

for the management and operations of the Hawaiian

home lands program as a “compact” with the United

States. Haw. Const., art. XII, § 2; Keaukaha-Panaewa Com-

munity Ass'n v. Hawaiian Homes Comm'n (Keaukaha II), 739

F.2d 1467, 1469 (9th Cir. 1984); Ahuna v. Department of

Hawaiian Home Lands, 64 Ha. 327, 337, 640 P.2d 1161, 1168

(1987). As the Ninth Circuit stated almost a decade ago:

Congress’ role in the formation of a compact

between the United States and a State is at least

as great as Congress’ role in approving a com-

pact between two States. In addition, federal

law is “an essential element” of a suit that

charges a violation of a compact incorporating

“the spirit of the [HHCA] looking to the contin-

uance of the Hawaiian homes projects.” Haw.

Const., art. XII, § 2; art. XII, § 4; art. XVI, § 7; see

Keaukaha II, 739 F.2d at 1472.

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

cert. denied, Hou Hawaiians v. Hawaii, 474 U.S. 1055, reh’g

denied, 475 U.S. 1091 (1986). A federal-state compact, like

an interstate compact, is enforceable as a matter of fed-

eral law because it derives its powers from Congress and

can be amended or repealed only with the consent of

Congress. Although the management and disposition of

23 We recognize that under § 4 of the Admission Act, Con-

gress gave the State power to amend (through its constitution or

State legislation) certain limited provisions of the HHCA with-

out congressional consent, including: provisions relating to

administration (for example, §§ 202, 213, 219, 220, 222, 224 and

225); provisions relating to the powers and duties of non-admin-

istrative officers, such as §§ 204(2), 206 and 212. The State can

also, through the same procedures, increase the benefits to les-

sees of Hawaiian home lands. 1 Haw. Rev. Stat. 86, 86-87 (1985)

(Admission Act, 1959, § 4); see also Haw. Const. art. XII, § 3.

| ,

App. 31

Hawaiian home lands has been turned over to the State in

§ 4 of the Admission Act, “Congress enacted . . . a federal

public trust, which by its nature creates a federally enfor-

ceable right for its beneficiaries to maintain an action

against the trustee? in breach of the trust.” Price v. Akaka

(Akaka II), 3 F.3d 1220, 1225 (9th Cir. 1993), cert. denied, 114

S. Ct. 1645 (1994); see also Price v. State of Hawai'i, 764 F.2d

at 629; Keaukaha II, 739 F.2d at 1571-72; Ahia v. Department

of Transp., 69 Haw. 538, 555, 751 P.2d 81, 91 (1988). Fur-

thermore, as the Ninth Circuit has Stated, the “ ‘compact’

between [Hawai'i] and the United States strictly limits the

manner in which [Hawai'i] may manage the homelands{.}”

Price v. Akaka (Akaka I), 928 F.2d 824, 826 n.1 (9th Cir.

1990) (emphasis added), cert. denied, 502 U.S. 967 (1991);

accord Akaka II, 3 F.3d at 1222 n.2.

2. Enforceability of the § 1983 claim

Second, we shall consider the Appellees’ argument

that Suter is directly at odds with Keaukaha II and other

federal cases that allow § 1983 enforcement via § 5(f) of

the Admission Act. The Appellees essentially contend

that Suter supersedes application of the following two-

part framework traditionally applied when analyzing

§ 1983 enforceability issues:

First, the plaintiff must assert the violation of a

federal right. . . . In deciding whether a federal

right has been violated, we have considered

74 The Commission “is the specific state entity obliged to

implement [the Hawaiian home lands trust] on behalf of eligible

native Hawaiians.” Ahuna, 64 Haw. at 338, 640 P.2d at 1168.

App. 32

whether the provision in question creates obli-

gations binding on the governmental unit or

rather does no more than express a congres-

sional preference for certain kinds of treatment.

The interest the plaintiff asserts must not be too

vague and amorphous to be beyond the compe-

tence of the judiciary to enforce. We have also

asked whether the provision in question was

intended to benefit the putative plaintiff.

Second, even when the plaintiff has asserted

a federal right, the defendant may show that

Congress specifically foreclosed a remedy under

§ 1983, by providing a comprehensive enforce-

ment mechanism for protection of a federal

right[.] The availability of administrative mech-

anisms to protect the plaintiff’s interests is not

necessarily sufficient to demonstrate that Con-

gress intended to foreclose a § 1983 remedy.

Rather the statutory framework must be such

that allowing a plaintiff to bring a § 1983 action

would be inconsistent with Congress’ carefully

tailored scheme. The burden to demonstrate that

Congress has expressly withdrawn the remedy

is on the defendant. We do not lightly conclude

that Congress intended to preclude reliance on

§ 1983 as a remedy for the deprivation of a

federally secured right.

Golden Gate Transit Corp. v. City of Los Angeles, 493 U.S.

103, 106-07 (1989) (internal quotations and citations omit-

ted). See also Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498

(1990); Wright v. Roanoke Redevelopment & Housing Auth.,

479 U.S. 418 (1987); Smith v. Robinson, 468 U.S. 992 (1984);

Middlesex County Sewerage Auth. v. National Sea Clammers

Ass‘n, 453 U.S. 1 (1981); Pennhurst State School and Hospital

App. 33

v. Halderman, 451 U.S. 1 (1981); Maine v. Thiboutot, 448

U.S. 1 (1980).

In Suter, the Court held that the Adoption Assistance

and Child Welfare Act (AACWA) does not create rights

enforceable in an action under § 1983 because such rights

are not “unambiguously conferred” by the AACWA. 112

S. Ct. at 1367-68. The AACWA established a federal reim-

bursement program for certain expenses incurred by

States in administering foster care and adoption services.

In order to qualify for reimbursement, States are obli-

gated to submit a plan to the Secretary of Health and

Human Services for approval. In order to obtain

approval, this plan must provide, inter alia, that the State

will undertake “reasonable efforts” to prevent removal of

children from their homes and to facilitate reunification

of families where removal has occurred. The Secretary

has only limited power to enforce this requirement once a

State’s plan is approved; therefore, within broad limits,

compliance with the term “reasonable efforts” is “left up

to the State.” Id. at 1368.

In determining that the hortatory requirements of the

AACWA did not establish federal rights actionable under

§ 1983, the Court in Suter distinguished an earlier case

that construed the term “reasonable” in the context of a

different statute. Id. at 1367-68 (citing Wilder, supra, which

involved Medicaid legislation). The Court in Wilder had

examined the relevant legislative enactment and found

detailed factors that Congress required the States to con-

sider in determining their individual methods for calcu-

lating “reasonable and adequate” rates. 496 U.S. at 519

n.17. Construing the term “reasonable” in light of the

App. 34

legislation as a whole, the Court found that the statutory

provisions created a right enforceable under § 1983. Id. at

524. Notwithstanding the Court’s efforts to distinguish

Wilder in the Suter opinion, it did not expressly or implic-

itly overrule the traditional § 1983 enforceability frame-

work.

In Arkansas Medical Society, Inc. v. Reynolds, 6 F.3d 519

(8th Cir. 1993), the United States Court of Appeals for the

Eighth Circuit specifically considered Suter’s impact on

the traditional framework for analyzing § 1983 enfor-

ceability issues. The Eighth Circuit concluded that the

analysis in Suter can be harmonized with the traditional

framework. 6 F.3d at 525. Furthermore, none of the other

cases cited by the Appellees holds that the traditional

framework is no longer valid. See Stowell v. Ives, 976 F.2d

65, 68 (1st Cir. 1992) (applying the traditional framework

“as reconfigured by the neoteric principles announced in

Suter”).25

Suter urges careful scrutiny of the exact legislation at

issue, see 112 S. Ct. at 1367 (citing Wilder, 496 U.S. at 509,

and Wright, 479 U.S. at 423), and merely reemphasizes the

point in Pennhurst, supra, that legislation enacted pur-

suant to Congress’s spending power must be imposed

unambiguously. 112 S. Ct. at 1366 (citing Pennhurst, 451

U.S. at 17, 24). Bearing in mind these considerations, the

25 The other case cited by the Appellees, Resident Council of

Allen Parkway Village v. HUD, 980 F.2d 1043 (5th Cir.), cert.

denied, 114 S. Ct. 75 (1993), did not decide the question whether

Suter “effected a sea [of] change in the Court’s approach to

§ 1983,” because the legislation in question did not pass the

traditional two-part test. 980 F.2d at 1052.

App. 35

Eighth Circuit applied the traditional framework to its

analysis of the same statute involved in Wilder, supra, and

concluded that Medicaid recipients may legitimately

enforce the equal access provision of the AACWA via

§ 1983. See Arkansas Medical, 6 F.3d at 523-28. Like the

Eighth Circuit’s analysis in Arkansas Medical, our inquiry

into the relevant statutes in the instant case is also sim-

plified by prior judicial decisions holding that breaches of

the Homelands trust can be enforced by native Hawaiian

beneficiaries under § 1983.

The initial factor to consider is whether the enact-

ments at issue create a binding obligation or merely

express congressional preference for a certain kind of

conduct. Suter, 112 S. Ct. at 1366-67; Golden State, 493 U.S.

at 106. Essentially, the Appellees contend that the require-

ments included in the HHCA and the Admission Act are

merely hortatory and not mandatory. Specifically, the

Appellees claim that “Suter is directly at odds with Kea-

ukaha II, and its progeny, for § 5(f) does not ‘unam-

biguously confer’ upon native Hawaiian beneficiaries ‘a

right to enforce’ the Admission Act (and, a fortiori, the

HHCA).” Nevertheless, in Akaka II, the Ninth Circuit held

that its:

decisions in Keaukaha II, 739 F.2d at 1472, and

Akaka I, holding that beneficiaries of the public

trust created by Congress may bring a § 1983

claim[,] are consistent with the Supreme Court's

decision in Suter. Congress enacted the Admis-

Sion Act, a federal public trust, which by its

nature creates a federally enforceable right for

App. 36

its beneficiaries to maintain an action against

the trustee in breach of the trust.

Akaka II, 3 F.3d at 1225 (emphasis added). Furthermore, in

Pele Defense Fund v. Paty, supra, we expressly recognized

that allowing a private right of action under § 1983 for

suits alleging a breach of trust is “consistent with the

common law of trusts, in which one whose status as a

beneficiary depends on the discretion of the trustee nev-

ertheless may sue to compel the trustee to abide by the

terms of the trust.” 73 Haw. at 592 n.8, 837 P.2d at 1257

n.8 (citing Akaka I, 928 F.2d at 826-27); see also Akaka II, 3

F.3d at 1224-25 (citing Restatement (Second) Trusts, §§ 199

& 200 comment).76 Accordingly, we conclude that the

HHCA and ‘te Admission Act impose a binding obliga-

tion on the State.

Another factor to consider is whether the statute’s

language is too vague and amorphous to enforce via

§ 1983. Suter, 112 S. Ct. at 1366-67; Golden State, 493 U.S. at

106. The Appellees note that “[a]s in Suter, Congress has

26 Trust beneficiaries have the right to (a) compel the per-

formance of trust duties, (b) enjoin the commission of a breach

of trust by the trustee, and (c) compel the trustee to redress a

breach of trust. Akaka II, 3 F.3d at 1224-25. With respect to claims

against state officials under § 1983, however, claimants cannot

recover money damages or the equivalent for past violations of

law; nevertheless, relief that is “prospective in nature may be

allowed regardless of the state’s sovereign immunity.” Pele

Defense Fund v. Paty, 73 Haw. at 609, 837 P.2d at 1266. In the

instant case, therefore, the Aged Hawaiians’ claims are properly

formulated.

App. 37

‘left up to the State’ how to comply with Admission Act

sections 4 and 5(f), subject only to enforcement by the

United States.” The Adoption Assistance and Child Wel-

fare Act (AACWA) analyzed in Suter “only [went] so far

as to ensure that the State have a plan approved by the

Secretary [of Health and Human Services].” 112 S. Ct. at

1367 (emphasis added). Consequently, the AACWA con-

fers considerable discretion upon the states to provide the

particular details, based on the broad features outlined in

the statute. 112 S. Ct. at 1369. However, the simple fact

that Congress has granted considerable discretion regard-

ing the implementation of Statutory requirements is not

enough to preclude a finding of judicial enforceability.

See, e.g., Wilder, 496 U.S. at 519-20; Wright, 479 U.S. at

431-32; Arkansas Medical, 6 F.3d at 527. Notwithstanding

the State’s discretionary authority under section 5(f) of

the Admission Act - to manage and dispose of lands,

proceeds and income generated from the Home land trust

“in such manner as the constitution and laws of said State

may provide” — section 4 of the Admission Act estab-

lishes a “compact” between the United States and

Hawai'i that “strictly limits the manner in which [the

State] may manage the homelands[.]” Akaka I, 928 F.2d at

826 n.1; accord Akaka II, 3 F.3d at 1222 n.2. Therefore, the

statutory obligations in the instant case are readily distin-

guishable from the mere requirement of a secretarially-

approved “plan” in Suter.

Under HHCA § 207(a), qualified native Hawaiian

beneficiaries are entitled to lease up to 1,000 acres of

unirrigated pastoral land, or up to 100 acres of irrigated

pastoral land. Furthermore, HHCA § 207(b) mandates

that the DHHL “shall, whenever tracts are available, enter

App. 38

into such a lease with any applicant who, in the opinion

of the department, is qualified to perform the conditions

of such lease.” 1 Haw. Rev. Stat. at 183 (emphasis added).

In addition, HHCA § 204(a)(2) provides that available

lands “not required for leasing under section 207(a)” may

be leased to members of the general public. 1 Haw. Rev.

Stat. at 49 (emphasis added).?7 We conclude that the

judiciary is authorized to enforce the relevant terms of

the Admission Act and the HHCA in the instant case.

The final factor to consider is statutory intent to

benefit the claimant. Golden Gate, 493 U.S. at 106. Native

Hawaiians are clearly intended beneficiaries of the public

trust established in the HHCA and the Admission Act.

Furthermore, because the Aged Hawaiians merely seek

prospective relief, it is reasonable to presume that “the

remedy, if granted, will inure to the benefit of those

members of the association actually injured.” Hunt, 432

U.S. at 343.

27 The Appellees maintain that “the Commission has a ‘spe-

cial’ statutory competence in ascertaining whether lands are

‘required for leasing’ under § 207 of the Act, or may be used for

general leasing purposes to facilitate other statutory goals[,}”

and therefore, dismissal is appropriate under the primary juris-

diction doctrine. As noted previously, however, see supra section

Ill.A.2, we need not wait for further decision-making because

the agency already made a determination of availability with

respect to the lands covered by its 1990 Plan.

App. 39

3. The relevant statutes do not preclude § 1983

actions

Under the second prong of the traditional framework

for § 1983 enforceability issues, an otherwise viable

§ 1983 claim may nevertheless be foreclosed if such an

action is inconsistent with a comprehensive and carefully

tailored remedial scheme constructed by Congress.

Golden Gate, 493 U.S. at 106-07. In the instant case, the

Appellees bear the burden of showing that enforcement

under § 1983 would be inconsistent with the remedial

Provisions of the Admission Act. In Wilder, supra, the

United States Supreme Court noted that “[o]n only two

occasions have we found a remedial scheme established

by Congress sufficient to displace the remedy provided in

§ 1983.” 496 U.S. at 521. The federal statutes involved in

those cases were: (1) the Education of the Handicapped

Act, Smith v. Robinson, 468 U.S. at 1010-11; and (2) the

Federal Water Pollution Control Act, and the Marine Pro-

tection, Research and Sanctuaries Act. National Sea Clam-

mers Ass'n, 453 U.S. at 11. Each of these enactments

contained elaborate provisions authorizing numerous

specific statutory remedies, thereby demonstrating a con-

gressional intent to preclude an alternative remedy under

§ 1983. By contrast, the only remedy expressly authorized

by the HHCA under the Admission Act is suit by the

United States; there is no elaborate remedial scheme that

the Aged Hawaiians could pursue to enforce their rights.

Cf. Han v. United States Dep't of Justice, __ F.3d Jas td

—_

(9th Cir. 1995) (affirming dismissal of Hawaiian home-

lands lessees’ challenge to the Commission’s act of

authorizing third party agreements). Thus, the Appellees

have not shown that the Admission Act and the HHCA

App. 40

contain sufficiently comprehensive remedial devices that

would justify a conclusion that Congress intended to

foreclose § 1983 actions.

4. Application to the instant case

Returning to the first prong of the traditional frame-

work for determining § 1983 enforceability issues, as

explicated in Suter, and having resolved factors (a), (b),

and (c) in the Aged Hawaiians’ favor, the question

remains whether these claimants met their burden of

establishing the violation of a federal right. Notwith-

standing a 1985 amendment to the HHCA that eliminated

the minimum allowable acreage for a pastoral homestead

lot,74 the Aged Hawaiians claim that the Commission

may not simply award lots of ary size it chooses because

HHCA § 207(a) must be construed in light of the Com-

mission’s duty to promote the rehabilitation of native

Hawaiians. See Ahuna, 64 Haw. at 336, 640 P.2d at 1167

(mentioning the “fiduciary obligation to place benefici-

aries of the HHCA .. . on the land to the fullest extent

possible”). By amending HHCA § 207(a), the legislature

“intend[ed] merely to remove the minimum acreage now

specified by law . . . [and] retain the present statutory

ceiling on the maximum acreage that can be awarded in

28 Congress gave its consent, as required by § 4 of the

Admission Act, to this and other HHCA amendments in 1986.

See Public Law 99-557 (Oct. 27, 1986). Previously, HHCA

§ 207(a) permitted pastoral lot awards in the following ranges:

100-500 acres of first-class pastoral lands, 250-1000 acres of

second-class pastoral lands, and 40-100 acres of irrigated pas-

toral land.

App. 41

the case of irrigated pastoral lands[.]” Hse. Stand. Comm.

Rep. No. 873, in 1985 House Journal, at 1414; see also Sen.

Stand. Comm. Rep. No. 480, in 1985 Senate Journal, at

1087-88.

It is true that the legislative history of the HHCA

acknowledges DHHL’s limited resources and the prohib-

itive cost of essential site improvements; however, the

legislature also expressed its belief that “many existing

pastoral leases are too large for an individual ranch opera-

tion, thereby forcing many homesteaders to enter into

grazing agreements with other ranchers, [and that reduc-

ing] the . . . size of pastoral lots would allow home-

steaders to be more independent in their land use[.] Hse.

Stand. Comm. Rep. No. 873, in 1985 House Journal, at

1414 (emphasis added); see also Sen. Stand. Comm. Rep.

No. 480, in 1985 Senate Journal, at 1088. The legislature

also believed that the use of “intensive ranching tech-

niques [would] increase the carrying capacity of a given

unit of pasture.” Hse. Stand. Comm. Rep. No. 873, in 1985

House Journal, at 1414; see also Sen. Stand. Comm. Rep.

No. 480, in 1985 Senate Journal, at 1088 (“intensive ranch-

ing techniques can now increase the carrying capacity of

given acreages two or three times”). Construing this leg-

islative history as a whole, we cannot infer that the

legislature intended to deny qualified homesteaders the

Opportunity to pursue commercial ranching activities.

The Commission and DHHL adopted the subsistence

ranching policy in the 1990 Plan based on the implicit

conclusion that awarding commercially viable ranching

leases would amount to an excessive conferral of benefits

on a small minority of beneficiaries at great costs to the

larger group, which has been patiently waiting to receive

App. 42

benefits under the Act. As in Ahuna, however, the Com-

missioners in the instant case “have failed to sufficiently

demonstrate that they considered the interests of all ben-

eficiaries.” 64 Haw. at 340, 640 P.2d at 1170.

In ruling on a motion for summary judgment, the

evidence must be “viewed in the light most favorable to

the nonmoving party.” State Farm Mutual Auto. Ins. Co. v.

Fermahin, 73 Haw. 552, 555, 836 P.2d 1074, 1076 (1992).

Accordingly, the record in the instant case contains alle-

gations supported by the following facts, which could

sustain a finding that the Commission has not treated

beneficiaries who seek commercial ranching oppor-

tunities fairly: (1) the agency adopted its 1990 Plan with-

out consulting obviously interested parties, despite

repeated requests for information by the Aged Hawai-

ians; (2) the 100 and 200 acre lots included in the Com-

mission’s 1990 Plan are clearly not “economic units,” but

merely represent a “response” to the interests of aspiring

commercial ranchers — despite the Commission’s unani-

mous vote to “address the concerns of those native

Hawaiians who have the capability to commercial ranch,

[so] that [they can] be given the opportunity to do so[,]

and [to require] that the [DHHL] present to the [Commis-

sion] a proposal to effectuate commercial ranching”; (3)

the Commission has still not followed up on this require-

ment by demanding a commercial ranching proposal

from DHHL,; and (4) despite the recommendations of a

Federal-State Task Force in 1983, the Commission did not

make individualized determinations of the applicants’

need for pastoral land, or their capacity to engage in such

endeavors, before implementing its 1990 Plan. The Aged

App. 43

Hawaiians are not merely relying upon conclusory asser-

tions. See Briggs v. Hotel Corp. of the Pac., 73 Haw. 276, 281

n.5, 831 P.2d 1335, 1339 n.5 (1992). At the very least, there

are genuine issues of material fact as to whether commer-

cial ranching is feasible on lots of less than 1,000 acres.

See supra note 8. Consequently, summary judgment

should not have been granted in favor of the Appellees.

Based on the foregoing analysis, we hold that: (1) the

Aged Hawaiians have asserted a viable claim under

§ 1983 alleging a breach of trust duties by the Appellees

under the HHCA (via the Admission Act); and (2) the

circuit court erroneously granted summary judgment dis-

missing the claim. Should the circuit court find a viola-

tion of the Aged Hawaiians’ federal rights under the

HHCA and the Admission Act on remand, an appropriate

form of relief would be an injunction preventing the

award of additional pastoral land to beneficiaries other

than the 1990 selectees until the Commission at least

considers applications by any among this group who

desire additional Pastoral acreage.

C. SECTION 1983 CONSTITUTIONAL DUE PRO-

CESS CLAIM

The Appellees’ basic contention in this case is that

the Commission’s “resource allocation [efforts] . . . meet

[ ] the Admission Act’s requirement that the Home Lands

be devoted to... ‘the betterment of the conditions of

native Hawaiians[,]’ .. . even though others would bene-

fit.” The Appellees argue further that the individual

Commissioners acted within their discretionary authority

because § 4 of the Admission Act, which incorporates the

App. 44

HHCA, does not compel maximum distribution. In other

words, the Appellees claim that the Aged Hawaiians have

received all the process that is due. The Aged Hawaiians,

on the other hand, essentially seek a declaration of their

right as trust beneficiaries to a hearing at which they will

have the opportunity to demonstrate the appropriateness

of an economic unit award in conjunction with an exis-

ting entitlement under the HHCA. This procedural due

process issue is slightly different from the claim based on

the alleged violation of the HHCA and the Admission

Act.

A fundamental requirement for a successful due pro-

cess claim is the deprivation of a property interest. Pele

Defense Fund v. Puna Geothermal Venture, 77 Hawai'i 64,

68, 881 P.2d 1210, 1214 (1994). Notwithstanding the

Appellees’ arguments to the contrary, qualified HHCA

beneficiaries on homestead waiting lists are entitled to

homestead awards. A “property interest” is not limited to

“the traditional ‘right-privilege’ distinction{,] . . . [but

also includes] benefit[s] which one is entitled to receive

by statute[.]” Aguiar v. Hawaii Housing Authority, 55 Haw.

478, 496, 522 P.2d 1255, 1267 (1974); see also Board of

Regents v. Roth; 408 U.S. 564, 577 (1976). In the instant

case, the Aged Hawaiians’ claims are based upon valid

property interests; therefore, they are not asserting a

claim based on the mere “expectation of receiving pro-

cess .. . without more[.]”29 Olim v. Wakinekona, 461 U.S.

29 The instant case is unlike the claim in Bush, supra. First,

the Aged Hawaiians do not invoke this court's jurisdiction

under HRS § 91-14. Second, the proceedings at issue here

involve agency decisions that effectively determined the scope

App. 45

238, 250 n.12 (1983); see also Roth, 408 US. at 577-78 (citing

Goldberg v. Kelly, 397 U.S. 254 (1970), and noting that the

relevant property interest is “created and defined by

Statutory terms[,]” the applicability of which the claim-

ants failed to establish in that case).

The scope of the Property interests held by HHCA

beneficiaries prior to their selection of homestead lots,

however, requires further analysis. Although HHCA ben-

eficiaries are not necessarily entitled to “economic units”

upon which they can engage in commercial ranching,

they are entitled to be placed on the land to the fullest

extent possible. See discussion supra section III.B, con-

cerning the 1985 amendment to HHCA § 207(a). More

precisely, the Commission may not arbitrarily preclude

the award of an “economic unit.”

The HHCA authorizes the Commission and DHHL

to: (1) “assist the lessees in obtaining maximum utilization

of the leased lands, including taking steps necessary to

develop these lands for their highest and best use commen-

surate with the purposes for which the land is being leased as

provided in Section 207|,]” 1 Haw. Rev. Stat. 167, 201 (1985)

(HHCA, 1920, § 219.1) (emphasis added); (2) undertake

and carry out general water and development projects, 1

Haw. Rev. Stat. 39, 59-60 (Supp. 1992) (HHCA, as

amended, § 220); (3) provide loans for the purchase of

livestock and equipment, 1 Haw. Rev. Stat. 39, 56-57

of the Aged Hawaiians’ existing entitlement. Approval of the

third party agreements in Bush, on the other hand, did not

constitute action affecting any “property interest [under] the

relevant sections of the HHCA and the HAR.” Bush, 76 Hawai'i

at 136, 870 P.2d at 1280.

App. 46

(Supp. 1992) (HHCA, as amended, § 214); (4) provide

agricultural experts and sufficient water for the watering

of livestock, 1 Haw. Rev. Stat. 167, 200 (1985) (HHCA,

1920, § 219); 1 Haw. Rev. Stat. 167, 202-203 (1985) and 1

Haw. Rev. Stat. 39, 62-63 (Supp. 1992) (HHCA, 1920 and

as amended, § 221); (5) establish “a permanent land base

for the benefit and use of native Hawaiians, upon which

they may . . . ranch[,] 1 Haw. Rev. Stat. 39 (Supp. 1992)

(HHCA, as provisionally amended, § 101),5° and (6) pro-

vide “financial support and technical assistance to native

Hawaiian beneficiaries so that by pursuing strategies to

enhance economic self-sufficiency . . . the traditions, cul-

ture and quality of life of native Hawaiians shall be

forever self-sustaining.” Id. These provisions contemplate

and seek to promote full-time ranching, farming and

aquaculture by native Hawaiians on homestead lots.

Although less intense ranching activities of this

nature designed to supplement homesteaders’ incomes

are also appropriate under the HHCA, the Appellees

% Section 101, the “Purpose” clause, was enacted by the

Hawai'i legislature in 1990. 1990 Haw. Sess. L. Act 349, § 1 at

1075-76. This amendment is subject to the consent of Congress.

See 1 Haw. Rev. Stat. 86, 86 (1985) (Admission Act, 1959, § 4).

Nevertheless, this language is consistent with judicial decisions

based upon the legislative history of the HHCA. One of the

HHCA’s authors, Senator John H. Wise, specifically stated that

the HHCA was intended to “rehabilitate” native Hawaiians by

giving them “lands to live on” and “the mode of living that their

ancestors were accustomed to” in order to “work[ ] out their

own salvation.” See Ahuna, 64 Haw. at 336 & n.10, 640 P.2d at

1167 & n.10 (citing H.R. Rep. No. 839, 66th Cong., 2d Sess. 4

(1920)); see also Report of the Federal-State Task Force on the

[HHCA] 14 (August 1983).

App. 47

must give adequate consideration to applications for

homestead awards of a size sufficient for commercial

ranching. In the instant case, it appears that some bene-

ficiaries were pressured into accepting smaller pastoral

lots without sufficient opportunity to present their case

for a larger lot award. These homesteaders must now

wait for (1) additional “available lands” to be withdrawn

from general leasing, and (2) their names to rise up from

the bottom of the new waiting list. The process may not

take forty years this time around, but the agency’s pre-

vious course of action suggests that the Aged Hawaiians’

goal of “self-sufficiency” through commercial ranching

will not be given serious consideration.

Once a claimant demonstrates a sufficient property

interest, the court must balance the following factors to

determine the specific procedures required to satisfy due

process guaranteed by the fourteenth amendment:

(1) the private interest which will be affected; (2)

the risk of an erroneous deprivation of such

interest through the procedures actually used,

and the probable value, if any, of additional or

alternative procedural safeguards; and (3) the

governmental interest, including the burden

that additional procedural safeguards would

entail.

Kernan v. Tanaka, 75 Haw. 1, 22-23, 856 P.2d 1207, 1219-20

(1993) (citing Mathews v. Eldridge, 424 U.S. at 335), cert.

denied, 114 S. Ct. 1070 (1994). As the circuit court held in

its September 4, 1990 order denying the Aged Hawaiians’

request for a preliminary injunction, it is indeed a “close

App. 48

question” whether the Aged Hawaiians’ asserted inter-

ests should prevail under this test. Nevertheless, the bal-

ance of interests is tilted in favor of the private interests

based on the procedural infirmities that have already

taken place, including: (1) attempted implementation of

the “ten premises” as “internal management” measures

outside the rule making process; (2) promulgation of

vague rules; (3) failure to provide adequate notice or

opportunity to be heard in conjunction with the develop-

ment of the 1990 Plan; (4) awards of 100 and 200 acre lots

that do not serve any conceivable statutory purpose; and

(5) denial of contested case hearing requests to Akiona

prior to the award of homestead lots. Our conclusion is

bolstered by the absence of reasonable alternatives for

obtaining relief. Cf. Medeiros v. Hawaii County Planning

Comm'n, 8 Haw. App. 183, 797 P.2d 59, reconsideration

denied, 8 Haw. App. 661, 868 P.2d 466 (1990).31 Additional

or alternative procedural safeguards would be of consid-

erable value in these circumstances. Accordingly, we hold

that HHCA beneficiaries on the pastoral waiting list are

31 In Medeiros, the Intermediate Court of Appeals had “no

doubt that [contested case hearings] would have considerably

burdened the process[,]” but noted further that the claimants

(unlike the Aged Hawaiians) had recourse to the “reasonable

alternative” of mediation, which could serve as a more effective

mechanism for obtaining relief than a contested case hearing. 8

Haw. App. at 197-98, 797 P.2d at 67. In the instant case, the Aged

Hawaiians made a substantial presentation at the meeting held

prior to adoption of the 1990 Plan. Although certain modifica-

tions were made to the previous plan after this meeting, and the

Aged Hawaiians obtained the Commission’s pledge to provide

greater opportunities for aspiring rancher-beneficiaries, the

agency, as yet, has not followed through on its promises.

App. 49

entitled to contested case hearings at which the Commis-

sion must at least consider their applications for pastoral

lot awards of sufficient acreage (within the statutory

limits) for commercial ranching activities.

IV. CONCLUSION

The doctrines of exhaustion and primary jurisdiction

do not bar the Aged Hawaiians’ claims under § 1983. Nor

do any of the other jurisdictional principles asserted by

the Appellees preclude determination of the issues raised

in this case. Native Hawaiian beneficiaries of the federal-

state compact, which is contained in the Hawai'i Admis-

sion Act and incorporates HHCA trust obligations, may

pursue claims under § 1983 based upon either the

asserted violation of rights under these acts or the due

process clause of the fourteenth amendment to the United

States Constitution. We hold that: (1) the circuit court’s

order granting summary judgment in favor of the Appel-

lees and dismissing the Aged Hawaiians’ § 1983 claims

was erroneous because genuine issues of material fact

remain to be decided with respect to the Aged Hawai-

ians’ claim that the 1990 lot awards violated their rights

under the HHCA; and (2) the Aged Hawaiians are enti-

tled as a matter of law to summary judgment on their

claim that the Commission violated their due process

rights when it failed to adequately consider their mem-

bers’ acknowledged desire for land sufficient to engage in

commercial ranching. Although HHCA beneficiaries on

the pastoral wait list are not entitled to “economic units”

per se, these individuals must be given an opportunity to

seek such an award prior to the implementation of a

pastoral homestead lot award plan.

App. 50

Accordingly, we reverse that part of the circuit

court’s order dismissing the Aged Hawaiians’ constitu-

tional due process claims under § 1983, vacate that por-

tion of the order concerning their breach of trust claims

under § 1983, and remand for further proceedings consis-

tent with this opinion.

Paul Nahoa Lucas (Alan T. Ronald T.Y. Moon

Murakami with him on Robert G. Klein

the briefs of the Native Steven H. Levinson

Hawaiian Legal Corporation) Paula A. Nakayama

for plaintiffs-appellants. Mario R. Ramil

Steven S. Michaels (Girard D.

Lau, Clayton Lee Crowell,

Sonia Faust, and George K.K.

Kaeo, Jr. with him on the

brief), Deputy Attorneys General

for defendants-appellees.

App. 51

APPENDIX B

No. 16974

IN THE SUPREME COURT OF THE STATE OF HAWAII

THE AGED HAWAIIANS, an

unincorporated association,

Plaintiff-Appellant,

I.’ AILAN HOMES

COAISSION; KALI WATSON,

in his capacity as Chairman of )

the Hawaiian Homes )

Commission; ANDREW )

APANA, NANI BRANDT, )

ROCKNE FREITAS, DENNIS __)

KAUAHI, LLEWELLYN )

KUMALAE, ANN NATHANIEL )

and PATRICIA SHEEHAN, in )

their capacities as members of )

the Hawaiian Homes )

Commission; and THE ;

)

DEPARTMENT OF HAWAIIAN

HOME LANDS,

Defendants-Appellees.

CIVIL NO. CIVIL

NO. 89-244

(Injunction)

APPEAL FROM

THE AMENDED

ORDER GRANTING

IN PART AND

DENYING IN PART

DEFENDANT'S

MOTION TO

DISMISS

PLAINTIFF’S

SECOND

AMENDED

COMPLAINT OR,

ALTERNATIVELY

FOR SUMMARY

JUDGMENT FILED

ON OCTOBER 8,

1992

THIRD CIRCUIT

COURT

HONORABLE

SHUNICHI

KIMURA JUDGE

App. 52

NOTICE AND JUDGMENT ON APPEAL

(Filed March 30, 1995)

TO THE HONORABLE PRESIDING JUDGE OF THE

FIRST DIVISION, THIRD CIRCUIT COURT, STATE OF

HAWAII

PLEASE TAKE NOTICE the following Judgment on

Appeal is entered this day by the Supreme Court of the

State of Hawaii:

Pursuant to the opinion of the Supreme Court

~ entered on March 14, 1995 the Amended Order Granting

in Part and Denying Part Defendants’ Motion to Dismiss

Plaintiff's Second Amended Complaint Or, Alternatively

for Summary Judgment of the Third Circuit Court

entered on October 8, 1992, we reverse that part of the

Circuit Court’s order dismissing the Aged Hawaiians’

constitutional due process claims under Section 1983,

vacate that portion of the order concerning their breach

of trust claims under Section 1983, and remand for fur-

ther proceedings consistent with this opinion.

DATED: Honolulu, Hawaii, MAR 30 1995, 1995.

BY THE COURT:

K. Miyamura

Clerk

APPROVED:

Robert G. Klein

JUSTI

(Seal)

App. 53

APPENDIX C

IN THE CIRCUIT COURT OF THE THIRD CIRCUIT

STATE OF HAWAII

THE AGED HAWAIIANS, an CIVIL NO. 89-244

unincorporated association,

Air ORDER GRANTING

Plaintiff, IN PART AND

DENYING IN PART

DEFENDANTS’

MOTION TO

DISMISS

vs.

)

HAWAIIAN HOMES )

COMMISSION; HOALIKU

DRAKE, in her capacit as

Chairman of the Seren ) PLAINTIFF'S

Homes Commission; ANDREW ) SECOND

APANA, NANI BRANDT, ) AMENDED

EDISON KEOMAKA, ALVINA_ ) COMPLAINT, OR,

PARK, GEORGE ROBERTSON, ) ALTERNATIVELY,

WALTER SMITH, JR., and ) MOTION FOR

DENNIS KAUAHI, in their ) SUMMARY

Capacities as members of the ) JUDGMENT

Hawaiian Homes Commission; ?

and THE DEPARTMENT OF _ )

HAWAIIAN HOME LANDS,

)

Defendants.

ORDER GRANTING IN PART AND DENYING IN

PART DEFENDANT'S MOTION TO DISMISS

PLAINTIFF’S SECOND AMENDED COMPLAINT

OR, ALTERNATIV ELY, MOTION FOR

SUMMARY JUDGMENT

(Filed Aug. 25, 1992)

The Motion to Dismiss Plaintiff’s Second Amended

Complaint or, Alternatively, Motion for Summary Judg-

ment by Defendants Hawaiian Homes Commission,

App. 54

Hoaliku Drake, Andrew Apana, Nani Brandt, Edison

Keomaka, Alvina Park, George Robertson, Walter Smith,

Jr., Dennis Kauahi and the Department of Hawaiian

Home Lands (“Defendants”) came on regularly for hear-

ing before this court on February 14, 1992. Kumu B.

Vasconcellos and Clayton Lee Crowell, Deputy Attorneys

General, appeared on behalf of Defendants and Paul F. N.

Lucas, Esq., and Alan T. Murakami, Esq., appeared on

behalf of Plaintiff The Aged Hawaiians. The court having

considered the arguments of counsel, the supplemental

written arguments filed on June 29, 1992, and the records

and files herein, hereby grants in part and denies in part

Defendants’ motions.

The court finds that all of Plaintiff’s claims in this

case, with the exception of its claim under section 91-7,

H.R.S., relating to the validity of section 10-3-29, Hawaii

Administrative Rules, are susceptible to the initial admin-

istrative resolution provided in the Hawaii Administra-

tive Procedures Act by way of a contested case hearing

before the Hawaiian Homes Commission. The court fur-

ther finds that the Department of Hawaiian Home Lands

has adopted formal procedures for contested case hear-

ings established by agency rules and that Plaintiff has not

filed a written requested for a contested case hearing,

thus failing to follow administrative procedures. See, €.8.,

Simpson v. Department of Land and National Resources, 8

Haw. App. 16, 791 P.2d 1267 (1990).

Moreover, the court finds that Plaintiff still has open

to it administrative procedures which provide an oppor-

tunity for an agency hearing and meet the statutory

demand for specific procedures culminating in judicial

review and that judicial review herein is not available

App. 55

under the Doctrine of Exhaustion of Administrative

Remedies until the administrative process has run its

course. Kona Old Hawaiian Trails Group v. Lyman, 69 Haw.

81, 734 P.2d 161 (1987); Hawaii Blind Vendors Association v.

Department of Human Services, 71 Haw. 367, 791 P.2d 1261

(1990).

Based on the foregoing, Defendants’ Motion to Dis-

miss Plaintiff’s Second Amended Complaint or, Alter-

natively, Motion for Summary Judgment is granted in

part and denied in part as follows: (1) Defendants’

Motions with respect to Plaintiff’s claim under section

91-7, H.R.S., relating to the validity of section 10-3-29,

Hawaii Administrative Rules, are hereby DENIED; and,

(2) Defendants’ Motions as to all other claims by Plaintiff

are hereby GRANTED and all claims, with the exception

of the claim under section 91-7, H.R.S., are hereby DIS-

MISSED.

IT IS SO ORDERED.

DATED: Hilo, Hawaii, AUG 25 1992.

SHUNICHI KIMURA (SEAL)

Judge of the Above-Entitled Court

APPROVED AS TO FORM:

/s/ Paul F. N. Lucas

ALAN T. MURAKAMI

PAUL F. N. LUCAS

Attorneys for Plaintiff

App. 56

APPENDIX D

IN THE CIRCUIT COURT OF THE THIRD CIRCUIT

STATE OF HAWAII

THE AGED HAWAIIANS, an ) CIVIL NO. 89-244

unincorporated association, ) (Injunction)

er )

apres ) ORDER GRANTING

vs. ) IN PART AND

HAWAIIAN HOMES ) DENYING IN PART

COMMISSION, et al., ). SLA

) MOTION FOR

Defendants. ) SUMMARY

) JUDGMENT FILED

) JANUARY 15, 1992

ORDER GRANTING IN PART AND DENYING IN PART

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

FILED JANUARY 15, 1992

(Filed Sept. 1, 1992)

This matter came on before the Honorable Judge

Shunichi Kimura for hearing on February 14, 1992. Paul

F.N. Lucas and Alan T. Murakami, appeared for Plaintiffs,

and Kumu Vasconcellos and Clayton Lee Crowell

appeared for Defendants.

The Court finds that procedural due process requires

that a fair process be available [so] to /s/ SK beneficiaries

of the Hawaiian Homes Commission Act (HHCA), jave

a fair opportunity to obtain sufficient land up to the

statutory maximum to ranch commercially in order to

earn a decent livelihood. Conversely, Congress intended

the homestead program to provide land.] The court [fur-

ther] finds that Defendants’ Administrative Rule

App. 57

§ 10-3-29, as adopted, [provides no clear procedure or

ascertainable standards by which a beneficiary may, prior

to the adoption of a pastoral lot award plan, petition for,

and receive upon a proper showing, pastoral land of

sufficient size to commercially ranch. Accordingly,

Administrative Rule 10-3-29] /s/ SK is void for vague-

ness.

The Court, having thoroughly considered the record

and the written and oral arguments of the parties, and

having been advised on the issues of this case; therefore,

IT IS HEREBY ORDERED, ADJUDGED AND

DECREED that:

1) The Plaintiffs’ Motion for Summary Judgment is

partially granted as to the validity of Hawaii Administra-

tive Rule (H.A.R.) 10-3-29.

2) The court hereby reserves jurisdiction to consider

whether its subsequent declaratory ruling should require

Defendants to include a procedure and timetable for the

return of trust lands leased to non-beneficiaries.

3) All of the remaining claims raised in Plaintiff's

Motion for Summary Judgment are denied.

DATED: Hilo, Hawaii, SEP-1 1992.

(Seal)

SHUNICHI KIMURA.

Judge of the above-entitled Court

Unapproved*

*Per Court memo, dated 7/15/92, Plaintiff’s Motion is

granted only as to the validity of the rule (10-3-29) pursuant to

) PRE PREAMPS RATED Wms

App. 58

/s/ Clayton Lee Crowell

KUMU VASCONCELLOS

CLAYTON LEE CROWELL

HRS, 91-7. Findings set forth in this form are beyond the scope

of § 91-7 and, therefore, objectionable.

App. 59

APPENDIX E

IN THE CIRCUIT COURT OF THE THIRD CIRCUIT

STATE OF HAWAII

THE AGED HAWAIIANS, ) CIVIL NO. 89-244

an unincorporated ) AMENDED ORDER

association, ) GRANTING IN PART AND

Plaintiff, ) DENYING IN PART

ic DEFENDANTS’ MOTION

TO DISMISS PLAINTIFF'S

HAWAIIAN HOMES )SECOND AMENDED

COMMISSION; HOALIKU ) COMPLAINT OR, ALTER-

DRAKE, in her capacity ) NATIVELY, MOTION FOR

as Chairman of the ) SUMMARY JUDGMENT

Hawaiian Homes

Commission; ANDREW

APANA, NANI BRANDT,

EDISON KEOMAKA,

ALVINA PARK, GEORGE

ROBERTSON, WALTER

SMITH, JR., and DENNIS

KAUAHL in their

capacities as members of

the Hawaiian Homes

Commission; and THE

DEPARTMENT OF

HAWAIIAN HOME

LANDS,

Defendants.

a ___eeenictemnntimedantionninsamainmameel ————

a a Pre TE Ee

5 baa

oa Be

App. 60

AMENDED ORDER GRANTING IN PART AND

DENYING IN PART DEFENDANTS’ MOTION TO

DISMISS PLAINTIFF’S SECOND AMENDED

COMPLAINT OR, ALTERNATIVELY, MOTION

FOR SUMMARY JUDGMENT

(Filed Oct. 8, 1992)

The Motion to Dismiss Plaintiff’s Second Amended

Complaint or, Alternatively, Motion for Summary Judg-

ment by Defendants Hawaiian Homes Commission,

Hoaliku Drake, Andrew Apana, Nani Brandt, Edison

Keomaka, Alvina Park, George Robertson, Walter Smith,

Jr. Dennis Kauahi and the Department of Hawaiian

Home Lands (“Defendants”) came on regularly for hear-

ing before this court on February 14, 1992. Kumu B.

Vasconcellos and Clayton Lee Crowell, Deputy Attorneys

General, appeared on behalf of Defendants and Paul F. N.

Lucas, Esq., and Alan T. Murakami, Esq., appeared on

behalf of Plaintiff The Aged Hawaiians. The court having

considered the arguments of counsel, the supplemental

written arguments filed on June 29, 1992, and the records

and files herein, hereby grants in part and denies in part

Defendants’ motions.

The court finds that all of Plaintiff’s claims in this

case, with the exception of its claim under section 91-7,

H.R.S., relating to the validity of section 10-3-29, Hawaii

Administrative Rules, are susceptible to the initial admin-

istrative resolution provided in the Hawaii Administra-

tive Procedures Act by way of a contested case hearing

before the Hawaiian Homes Commission. The court fur-

ther finds that the Department of Hawaiian Home Lands

has adopted formal procedures for contested case hear-

ings established by agency rules and that Plaintiff has not

App. 61

filed a written request for a contested case hearing, thus

failing to follow administrative procedures. See, ¢.g.,

Simpson v. Department of Land and National Resources, 8

Haw. App. 16, 791 P.2d 1267 (1990).

Moreover, the court finds that Plaintiff still has open

to it administrative procedures which provide an oppor-

tunity for an agency hearing and meet the statutory

demand for specific procedures culminating in judicial

review and that judicial review herein is not available

under the Doctrines of Primary Jurisdiction and Exhaus-

tion of Administrative Remedies until the administrative

process has run its course. Kona Old Hawaiian Trails Group

v. Lyman, 69 Haw. 81, 734 P.2d 161 (1987); Hawaii Blind

Vendors Association v. Department of Human Services, 71

Haw. 367, 791 P.2d 1261 (1990); Chun v. Employees’ Retire-

ment System, 73 Haw. 9, __ P.2d __ (1992).

Based on the foregoing, Defendants’ Motion to Dis-

miss Plaintiff’s Second Amended Complaint or, Alter-

natively, Motion for Summary Judgment is granted in

part and denied in part as follows: (1) Defendants’

Motions with respect to Plaintiff’s claim under section

91-7, H.RS., relating to the validity of section 10-3-29,

Hawaii Administrative Rules, are hereby DENIED; and,

(2) Defendants’ Motions as to all other claims by Plaintiff

are hereby GRANTED and all claims, with the exception

of the claim under section 91-7, H.R.S., are hereby DIS-

MISSED.

eee Eee ee

Ree De Rm ee ee ee ee ee ee Oe re wr me te ee

App. 62

IT IS SO ORDERED.

DATED: Hilo, Hawaii, OCT-8 1992.

SHUNICHI KIMURA (SEAL)

Judge of the Above-Entitled

Court

APPROVED AS TO FORM:

Objection to form (P.L.)

ALAN T. MURAKAMI

PAUL F. N. LUCAS

Attorneys for Plaintiff

App. 63

APPENDIX F

IN THE CIRCUIT COURT OF THE THIRD CIRCUIT

STATE OF HAWAII

THE AGED HAWAIIANS, ) CIVIL NO. 89-244

an unincorporated ) ORDER GRANTING

association, ) PLAINTIFF’S MOTION

Plaintiff, ) FOR CERTIFICATION OF

) AMENDED ORDER

) GRANTING IN PART AND

HAWAIIAN HOMES ) DENYING IN PART

COMMISSION; HOALIKU ) DEFENDANTS’ MOTION

DRAKE, in her capacity ) TO DISMISS PLAINTIFF'S

as Chairman of the )SECOND AMENDED

Hawaiian Homes ) COMPLAINT OR, ALTER-

VS.

Commission; ANDREW __) NATIVELY, MOTION FOR

APANA, NANI BRANDT, ) SUMMARY JUDGMENT

EDISON KEOMAKA, FILED 10-8-92 UNDER

ALVINA PARK, GEORGE ) RULE 54(B), HAWAII

ROBERTSON, WALTER ) RULES OF CIVIL PRO-

SMITH, JR., and DENNIS ) CEDURE

KAUAHL, in their

capacities as members of

the Hawaiian Homes

Commission; and THE coherence

DEPARTMENT OF

HAWAIIAN HOME JUDGE: Hon. Shunichi

LANDS, Kimura

Defendants.

) DATE: November 4, 1992

) TIME: 7:50 a.m.

(By telephone

App. 64

ORDER GRANTING PLAINTIFF’S MOTION FOR

CERTIFICATION OF AMENDED ORDER GRANTING

IN PART AND DENYING IN PART DEFENDANTS’

MOTION TO DISMISS PLAINTIFF'S SECOND

AMENDED COMPLAINT OR, ALTERNATIVELY,

MOTION FOR SUMMARY JUDGMENT FILED 10-8-92

UNDER RULE 54(B), HAWAII RULES

OF CIVIL PROCEDURE

(Filed Mar. 2, 1993)

Plaintiff’s Motion For Certification of Amended

Order Granting in Part and Denying in Part Defendants’

Motion to Dismiss Plaintiff’s Second Amended Com-

plaint or, Alternatively, Motion for Summary Judgment

Filed 10-8-92 Under Rule 54(B), Hawaii Rules of Civil

Procedure, came on regularly for hearing by telephone

conference before this court on November 4, 1992. Clay-

ton Lee Crowell, Deputy Attorney General, appeared on

behalf of Defendants and Paul F. N. Lucas, Esq., appeared

on behalf of Plaintiff The Aged Hawaiians. The court,

having considered the arguments of counsel and the

records and files herein, and finding no just reason for

delay, and good cause appearing therefore,

IT IS HEREBY ORDERED that Plaintiff’s Motion is

GRANTED and that the Amended Order Granting in Part

and Denying in Part Defendants’ Motion to Dismiss

Plaintiff’s Second Amended Complaint or, Alternatively,

Motion for Summary Judgment filed October 8, 1992,

shall be entered as a final judgment pursuant to Rule

54(B), Hawaii Rules of Civil Procedure.

App. 65

DATED: Hilo, Hawaii, MAR-2 1993.

/s/ Shunichi Kimura

Judge of the Above-Entitled

Court

APPROVED AS TO FORM:

ALAN T. MURAKAMI

PAUL F. N. LUCAS

Attorneys for Plaintiff

App. 66

APPENDIX G

IN THE CIRCUIT COURT OF THE THIRD CIRCUIT

STATE OF HAWAII

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