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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1995
- **Citation:** 516 U.S. 819

## Text

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

4
A

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.

4
On Petition For Writ Of Certiorari To The

Supreme Court Of The State Of Hawaii
¢

PETITION FOR WRIT OF CERTIORARI

_s
v

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?

ii

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

iv

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

Vv

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

vi

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

-
v

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.

o

On Petition For Writ Of Certiorari To The
Supreme Court Of The State Of Hawaii

,
v

PETITION FOR WRIT OF CERTIORARI

a
v

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

, :

5

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

ee

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).

10

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

11

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

12

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.

13

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

14

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

15

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

16

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

17

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.

18

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

19

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.

20

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

21

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).

22

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

23

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

24

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

© Cf. O’Bannon v. Town Court Nursing Center, 447 U.S. 773,
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”).

25

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

26

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.

27

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.

28

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

29

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.

(c) The board shall maintain a list of names and

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.

30

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,

© The “ten premises” were subsequently promulgated as a

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.

%
eS

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.

a.

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.

b.

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
th

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1906%3A1. Public record. Not legal advice.