THE SENATE

S.C.R. NO.

68

TWENTY-SECOND LEGISLATURE, 2003

 

STATE OF HAWAII

 
   


SENATE CONCURRENT

RESOLUTION

 

CREATING A JOINT TASK FORCE ON CEDED LAND REVENUES.

 

WHEREAS, Act 304, Session Laws of Hawaii (SLH) 1990 (Act 304), defined "public land trust" and "revenue" for purposes of chapter 10, Hawaii Revised Statutes (HRS), relating to the Office of Hawaiian Affairs (OHA) and its right to ceded lands revenue; and

WHEREAS, a portion of the Honolulu International Airport sits on ceded land, and OHA brought suit against the State in Office of Hawaiian Affairs v. State of Hawaii, 96 H 388, on January 14, 1994 (hereinafter OHA v. State of Hawaii), alleging the State failed to pay OHA its pro rata share of unspecified revenues that the State collected since June 16, 1980, from ceded lands; and

WHEREAS, on October 24, 1996, OHA was granted a partial summary judgment from which the State appealed; and

WHEREAS, the Legislature enacted Act 329, SLH 1997, an interim revenue measure pending the appeal of OHA v. State of Hawaii, to provide that $15,100,000, be paid to OHA from income and proceeds from the pro rata portion of the public land trust, for each of two fiscal years 1997-1998 and 1998-1999; and

WHEREAS, the State claimed in OHA v. State of Hawaii that the Federal Aviation Administration Authorization Act of 1994 which prohibits the use of airport revenues for general economic development, marketing, and promotional activities unrelated to airports or airport systems, barred the State from using moneys derived from the State's airport system to pay OHA; and

WHEREAS, in previously making payments to OHA from airport revenues, the State had justified the payments as a form of ground rent and therefore excluded from federal prohibition; however, the Inspector General of the Federal Aviation Administration (FAA) issued a report on April 25, 1997, stating that the payments to OHA were a violation of federal law; and

WHEREAS, the report of the Inspector General further recommended that the FAA withhold payments on current grants and approval of further grants until the State of Hawaii recovers $28.2 million in airport revenues paid to OHA for non-airport purposes; and

WHEREAS, in response to the FAA's action, Congress, in 1998, enacted the Forgiveness Act, P.L. 105-66, which forgave repayment of airport revenue moneys paid made by the State to OHA prior to April 1, 1996, and prohibited further payments to OHA; and

WHEREAS, in light of the federal legislation and the fact that the Honolulu International Airport partially sits on ceded land, the Hawaii Supreme Court ruled on September 12, 2001, in the appeal of OHA v. State of Hawaii, that Act 304 conflicted with federal law, and therefore the whole Act by its terms (section 16 of Act 304 provided for the non-severability of every provision in the Act) was invalidated, which effectively repealed Act 304; and

WHEREAS, without Act 304, the State, as explained by the Hawaii Supreme Court in OHA v. State of Hawaii, was left with no judicially manageable standards by which to determine specific revenues sought in the case; and

WHEREAS, the Hawaii Supreme Court nevertheless acknowledged the State's obligation to native Hawaiians as firmly established in the State Constitution, and placed the responsibility upon the Legislature to enact legislation that gives effect to the right of native Hawaiians to benefit from the ceded lands trust; and

WHEREAS, the Legislature recognizes that a legislative solution to OHA's right to ceded land revenues is urgently necessary, with a view towards compliance with federal and state constitutional and statutory law; now, therefore,

BE IT RESOLVED by the Senate of the Twenty-Second Legislature of the State of Hawaii, Regular Session of 2003, the House of Representatives concurring, that a joint ceded lands task force be convened to address the issues raised by the Hawaii Supreme Court's decision in OHA v. State of Hawaii, particularly as to the ceded lands upon which sits the Honolulu International Airport, and to propose legislation for consideration in the 2004 Regular Session; and

BE IT FURTHER RESOLVED that the joint ceded lands task force be composed of the following members:

(1) The Chair of the Senate Committee on Judiciary and Hawaiian Affairs, and two other Senators appointed by the Senate President;

(2) The Chair of the House Committee on Judiciary, and two other Representatives appointed by the Speaker of the House; and

(3) Two members appointed by the Governor;

and

BE IT FURTHER RESOLVED that the joint ceded lands task force seek the input and opinion from a wide range of community groups and entities known to be active in Hawaiian affairs; and

BE IT FURTHER RESOLVED that the Office of Hawaiian Affairs and the Department of Hawaiian Home Lands are requested to assist the joint ceded lands task force by providing input, opinion, insight, and information; and

BE IT FURTHER RESOLVED that the Department of the Attorney General is requested to assist the joint ceded lands task force with legal advice and opinion; and

BE IT FURTHER RESOLVED that certified copies of this Concurrent Resolution be transmitted to the President of the Senate, the Speaker of the House of Representatives, the Governor, the Chair of the Board of Trustees of the Office of

Hawaiian Affairs, the Chair of the Hawaiian Homes Commission, and the Attorney General.

 

 

 

OFFERED BY:

_____________________________

Report Title:

Joint Task Force on Ceded Land Revenues