Nhsc-v1-385

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nhsc-v1-385

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take. Therefore, the above listing does not necessarily cover all of the acreage under GBO's.

DHHL has been pursuing action to resolve two cases of withdrawn lands because of related lawsuits. One of the cases involves a lawsuit filed by the Keaukaha-Panaewa Community Association, a group of native Hawaiians, against the Commission and other defendants. The case involves approximately 25 acres of Home lands withdrawn for a flood control project. The second lawsuit involved approximately 92 acres of Home lands withdrawn for the General Lyman Airport and was filed by the Commission.

The flood control project case resulted in a September 1, 1976 declaration and conclusion of law by the U.S. District Court for the District of Hawaii which stated that the Commission had breached their trust or fiduciary duties by: (1) allowing the use of more than 25 acres of Home lands under the land exchange provisions without first satisfying the prerequisites for an exchange, (2) issuing a license for an unlawful purpose, (3) permitting the uncompensated use of these lands, and (4) allowing the needs of the general public, as opposed to the needs of the native Hawaiians, to control decisions made concerning the project.

The Court also ruled that the transfer of these lands was unlawful, in part, because the Commission had failed to obtain the approval of the Secretary of the Interior prior to allowing use and alteration of the lands, thereby depriving native Hawaiian beneficiaries of the protection afforded by his independent review. And, it ruled that Home lands cannot be used for the benefit of persons who are not beneficiaries under the Act without first obtaining reasonable compensation for such use, when otherwise permissible, based upon sound economic and accounting principles.

The Ninth Circuit Court of Appeals reversed the District Court, not on the merits of the case, but on jurisdictional grounds, holding that only the United States has the right to enforce the State's obligation by a breach of trust suit.

The Deputy Attorney General, State of Hawaii, informed us that DHHL and DLNR are now in the process of identifying lands to be exchanged for the lands used in the flood control project and that the DLNR Board will be acting on the proposal soon. The target date to submit an exchange to the Secretary of the Interior for approval is December 1982.

The Third Circuit Court of the State of Hawaii issued on September 24, 1980, an order granting a partial summary judgment for DHHL, the plaintiff in the case involving the General Lyman Airport in Hilo, Hawaii. The Court in this case ruled that the executive order powers of the Governor in respect to the lands of the Territory or State did not, and do not now, extend to Home lands.

As a result of the court's judgment in the General Lyman Airport case, the State of Hawaii Department of Transportation and DHHL have negotiated a 30-year lease for the 91.6 acres of Home lands withdrawn under GBO's. The lease provides for a one-time payment of $401,185 for all past use of the land, and annual lease rental of $481,422 retroactive to April 1, 1975, with the rentals to be redetermined at 10-year intervals. This lease will result in a substantial increase in revenues for DHHL operations and development of Home lands.

In regard to other withdrawn land, the Commission initiated negotiations with DLNR in 1977 to exchange approximately 30,000 acres of lands which DHHL purported to be Home lands,

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