"Office of Hawaiian Affairs sues state over airport money"

Tuesday, July 22, 2003

OHA sues state over airport money 
By Vicki Viotti
The Honolulu (HI) Advertiser


The Office of Hawaiian Affairs and its board of trustees yesterday sued the
state in a legal maneuver to preserve its claim on potentially millions of
dollars generated annually from airport operations on ceded lands.

The complaint was filed in state Circuit Court a day ahead of a legal
deadline so that the trustees would be able to bargain for the controversial
airport revenues when they start negotiating how much the state should pay
OHA, said board Chairwoman Haunani Apoliona.

The OHA negotiating team - headed by Apoliona and including trustees Dante
Carpenter, Boyd Mossman and Oswald Stender - expects negotiations to begin
in September, Apoliona said.

Attorney General Mark Bennett would not comment in detail on the lawsuit,
saying only that "the state does not believe the lawsuit has merit, and we
will vigorously defend against it."

Ceded land is property once controlled by the Hawaiian Kingdom for public
purposes or to support the crown. About 1.8 million acres was ceded to the
United States on annexation and back to Hawai'i upon statehood. Native
Hawaiians are among the beneficiaries of revenue from that land, and OHA
received a share that was calculated at 20 percent until nearly two years
ago, when the state law enabling those payments was struck down by the state
Supreme Court.

The reason for invalidating the statute, Act 304, was conflict between that
state law and the federal Forgiveness Act of 1997. The Forgiveness Act was
drawn up because of a Federal Aviation Administration finding that the share
of money from the airports should be used only for airport purposes and
should not go to OHA.

The act "forgave" the state for paying about $28.2 million to OHA going back
about 10 years, in exchange for an agreement to prohibit future payments of
airport revenues to OHA. The first time the proposed agreement came to light
was in a U.S. Senate report issued July 22, 1997.

"This is the first day that OHA could have reasonably known that the state
of Hawai'i changed its position on these revenues and essentially
capitulated to the FAA position," said OHA attorney Robert Klein.

Six years after that date - today - a statute of limitations would have
expired that may have precluded OHA from making a claim on the airport
money, Klein said. The lawsuit was aimed at keeping that option open, he
added.

The state "breached its fiduciary duties" as trustees for Hawaiians by
failing to defend the OHA payments as "rent" and therefore legal, Klein
said.

"Because the state breached its fiduciary duties, the state is responsible
for restoring those funds," he added.

Klein could not estimate what those payments would be worth to OHA because
of lingering disagreement over what qualifies as airport-generated revenues.

Apoliona and Bennett agreed that the lawsuit shouldn't hinder other
cooperative ventures between the state and OHA: lobbying for federal
recognition of Hawaiians and battling lawsuits that challenge all programs
benefiting only Hawaiians.

"We're confident the joint efforts will continue," Apoliona said.


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