Court warns
state, OHA

Settle your differences over
past-due revenues from ceded
lands, the court says, or
we'll do it for you

By Pat Omandam
Star-Bulletin

Members of the Hawaii Supreme Court today said they are "exceedingly disappointed" over the progress made by the state and the Office of Hawaiian Affairs to resolve the issue of past-due revenues from ceded lands.

In saying so, the Hawaii justices strongly urged both sides to expedite talks or, warned Chief Justice Ronald T.Y. Moon, the court will issue an opinion that may put both the state and OHA's positions at risks.

"We need to know where the parties are headed," Moon told state and OHA representatives, who appeared at a high court hearing this morning.

"Will it be in limbo for years to come? We can't have that," Moon said.

Attorney General Margery Bronster told the justices the negotiating teams have met five times since July 28, when the Supreme Court gave them until Dec. 1 to resolve the issue. Formal negotiations took place on Sept. 4, Sept. 23, Oct. 7, Oct. 15 and Oct. 30.

Attorney James Duffy Jr., the legal counsel for OHA's negotiation team, added there were a number of informal meetings that focused on procedural issues.

Still, the attorneys told the justices they haven't made much progress mainly because of their stances on what should be on the bargaining table. Bronster said the state is seeking an agreement that would address not only past-

due claims of revenue from ceded lands, but one that provides guidelines to determine all future ceded land revenues for OHA.

"What the state wants to do is come up with a resolution that is fair for OHA and all the people of the state . . . ," Bronster said.

"We would like to have some clarity as to what those obligations

Duffy, however, said OHA stands firm that the past-due revenues discussed in former Circuit Judge Daniel Heely's 1996 decision first be resolved before the agency discusses any agreement dealing with future revenues.

By law, OHA is paid 20 percent of the revenues derived from ceded lands for the betterment of native Hawaiians, one of the five uses of the public trust land. A 1997 law froze OHA's revenue payments at $15.1 million per year. The law expires next summer.

In July 1996, Heely declared the state should pay OHA more revenues for its use of ceded lands used by the Waikiki Duty Free Store, Hilo Hospital, the Hawaii Housing Authority and the state Department of Housing and Finance Development. Those revenues are estimated to range between $300 million and $1.2 billion.

"You can't tie what's owed in the past with what's owed in the future," Duffy said.

Nevertheless, especially with what seems to be a lack of scope for the talks, the justices questioned why more meetings were not held between July 28 and Dec. 1. Also, they wanted to know if the negotiations have reached a point where mediation or alternative dispute resolution was needed, something OHA raised early on in the talks but to no avail.

Associate Justice Robert G. Klein noted it has been more than a month since the legal counsel for both sides sent a Nov. 18 joint letter to the high court asking for more time. Why weren't there any talks between then and now, he wondered.

Chief Justice Moon said the court will take the request for more time under advisement.

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OHA Ceded Lands Ruling