Report Title:

OHA; Interim Revenues

Description:

Provides for interim revenues to be expended by OHA for fiscal biennium 2002-2003; extends lapse date of funds previously appropriated; provides further instruction for the legislative auditor on its efforts to establish the information system under Act 125, Session Laws of Hawaii 2000. (SB2476 HD2)

 

THE SENATE

S.B. NO.

2476

TWENTY-FIRST LEGISLATURE, 2002

S.D.2

STATE OF HAWAII

H.D. 2


 

A BILL FOR AN ACT

 

RELATING TO THE OFFICE OF HAWAIIAN AFFAIRS.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. The purpose of this Act is to reestablish a statutory mechanism, in the wake of the Hawaii supreme court's

decision in Office of Hawaiian Affairs v. State of Hawaii, 96 Haw. 388 (2001), to implement the provisions of article XII, sections 4, 5 and 6, and article XVI, section 7, of the State Constitution, and effectuate the trust provisions of section 5 (f) of the Admission Act. When that mechanism is in place, the office of Hawaiian affairs ought to be able to routinely receive and expend income and proceeds from the ceded lands to better the conditions of native Hawaiians as contemplated under the State Constitution. In addition, native Hawaiians ought to be able to benefit from the ceded lands trust as Congress intended when it ceded the lands to Hawaii and made Hawaii a state.

In its September 12, 2001, decision, the supreme court concluded that, by its terms, Act 304, Session Laws of Hawaii 1990, including its definitions of "public land trust" and "revenue," was repealed and replaced by the court's earlier ruling in Office of Hawaiian Affairs v. Yamasaki, 69 Haw. 154 (1987), that it was unable to determine what portion of moneys derived from the ceded lands was payable to the Office of Hawaiian Affairs, 96 Haw. at 400-401. Because this essentially resulted in no mechanism with which to effectuate the ceded lands trust provisions of the Admission Act or article XII of the State Constitution, the court further ruled that it was up to the legislature to "re-examine the State's constitutional obligation to native Hawaiians and the purpose of HRS §10-13.5 and enact legislation that most effectively and responsibly meets those obligations." 96 Haw. at 401.

There are many substantial and complex issues surrounding the management and disposition of the ceded lands trust that must be understood and resolved before a new mechanism to effectuate the State Constitution's requirements relating to native Hawaiians and the ceded lands can be re-established and operational. To allow the legislature sufficient time to address those issues and formulate a mechanism to routinely provide the Office of Hawaiian Affairs with a share of the income and proceeds from the ceded lands trust to better the conditions of native Hawaiians, this Act determines the sum certain amount of income and proceeds from the pro rata portion of the ceded lands trust that the Office of Hawaiian Affairs is to expend for that purpose in the next fiscal year.

If the mechanism the legislature ultimately creates to replace the one repealed is to be effective, just, and lasting, the legislature must have the benefit of comprehensive and credible information with which to create it. At a minimum, an inventory/information system that identifies and catalogues all of the revenue-generating parcels of the ceded lands trust and documents the receipts and expenses each of those parcels generates or incurs must be established and maintained.

During the Regular Session of 2000, the legislature passed Act 125 which directed the auditor to initiate and coordinate the establishment of a public land trust information system to assure the proper implementation of section 5(f) of the Admission Act, article XII, sections 4, 5, and 6 of the State Constitution, and chapter 10 of the Hawaii Revised Statutes. The information system was to include an inventory of all of the lands of the ceded lands trust, and a title history for each parcel included in the inventory. The auditor was also directed to:

(1) Conduct an investigation into the most appropriate means of establishing the information system;

(2) Identify existing sources of data, information, and resources that could be incorporated into the new information system or used to establish it;

(3) Estimate the costs of establishing the system; and

(4) Make recommendations as to the technology that should be used to establish and maintain the system, and the agency or official that would be authorized and responsible to maintain the system once it was established.

The legislature appropriated $250,000 for the auditor to expend for the purposes of Act 125, but conditioned the availability of those funds on the auditor's receipt of matching funds from the Office of Hawaiian Affairs for the same purpose.

In 2001, the legislature passed Act 165 to prevent the 2000 appropriations from lapsing before it could be spent, and appropriated an additional $100,000 (again available for expenditure only if matched by the Office of Hawaiian Affairs) for the auditor to use to implement Act 125.

Based upon information provided by the contractor retained to investigate and make recommendations for the establishment of the information system described in Act 125, the auditor now estimates that $________________________ would be needed to satisfy all of that Act's requirements. However, if the existing appropriations were extended for an additional year, the work the auditor and the auditor's contractor have completed thus far to establish a comprehensive information system for the inventory and maintenance of information about the ceded lands trust could be modified and used to inform the legislature in its efforts to formulate a replacement mechanism for satisfying the ceded lands trust requirements of the Admission Act and the State Constitution in the wake of the supreme court's September 12, 2001, decision.

The specific purposes of this Act are to:

(1) Establish a sum that represents the portion of the income and proceeds from the ceded lands trust that the Office of Hawaiian Affairs is to expend to better the conditions of native Hawaiians during fiscal year 2002-2003;

(2) Extend the lapse dates for the appropriations made in Act 125, Session Laws of Hawaii 2000, and Act 165, Session Laws of Hawaii 2001; and

(3) Direct the auditor to use the sums appropriated by Acts 125 and 165 to prepare a smaller-scaled information system relating to the ceded lands trust that, at minimum, includes an inventory of all parcels of the trust that are capable of generating income or proceeds with which to better the conditions of native Hawaiians, and records all receipts and expenses that each parcel generates or incurs.

SECTION 2. Section 10-13.3, Hawaii Revised Statues, is amended to read as follows:

"[[]§10-13.3[]] Interim revenue. Notwithstanding [the definition of revenue contained in this chapter and] the provisions of section 10-13.5, [and notwithstanding any claimed invalidity of Act 304, Session Laws of Hawaii 1990,] the income and proceeds from the pro rata portion of the public land trust under article XII, section 6 of the state constitution for expenditure by the office of Hawaiian affairs for the betterment of the conditions of native Hawaiians for [each of] fiscal year [1997-1998 and fiscal year 1998-1999 shall be $15,100,000.] 2002-2003 shall be $ ."

SECTION 3. Section 6 of Act 125, Session Laws of Hawaii 2000, as amended by section 2 of Act 165, Session Laws of Hawaii 2001, is amended to read as follows:

"SECTION 6. There is appropriated out of the general revenues of the State of Hawaii the sum of $250,000 or so much thereof as may be necessary for fiscal year 2000-2001 to be expended by the auditor for the purposes of this Act; provided that:

(1) No funds appropriated shall be expended unless separately matched on a dollar-for-dollar basis and paid to the auditor by the office of Hawaiian affairs;

and

(2) Any unexpended or unencumbered funds at the close of fiscal year 2000-2001 may be expended or encumbered during fiscal year 2001-2002, and shall not lapse until [June 30, 2002.] June 30, 2003.

The sum appropriated shall be expended by the auditor for the purposes of this Act."

SECTION 4. Act 165, Session Laws of Hawaii 2001, is amended by amending section 3 to read as follows:

"SECTION 3. There is appropriated out of the general revenues of the State of Hawaii the sum of $100,000 or so much thereof as may be necessary for fiscal year 2001-2002 to carry out the purposes of Act 125, Session Laws of Hawaii 2000; provided that no funds appropriated shall be expended unless separately matched in an amount not less than a dollar-for-dollar basis and paid to the auditor for the purposes of this Act.

Any unexpended or unencumbered portion of the $100,000

appropriated for expenditure in fiscal year 2001-2002 may be expended or encumbered during fiscal biennium 2001-2003, and shall not lapse until June 30, 2003.

The sum appropriated shall be expended by the auditor for the purposes of this Act."

SECTION 5. (a) The auditor shall continue the effort to establish the information system contemplated in Act 125,

Session Laws of Hawaii 2000, provided that the auditor's effort shall focus in the first instance on establishing an information system that:

(1) Identifies and catalogues only those parcels of land:

(A) Comprising the public land trust described

in section 5(f) of the Admission Act as of

August 21, 1959;

(B) Acquired after August 21, 1959, in exchange

for lands comprising the public land trust

on or after August 21, 1959; or

(C) Transferred to the State by the United

States after August 21, 1959, pursuant to

section 5(e) of the Admission Act or Pub. L.

88-233;

that reasonably may be considered capable of generating income or proceeds; and

(2) Records all sources and amounts of receipts and expenses each parcel included in the inventory generates or incurs.

(b) All state and county agencies shall assist the auditor in facilitating the establishment of the information system contemplated by this Act, and shall comply with any and all requests the auditor may make for any information and services pertinent to the completion of the information system.

SECTION 6. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 7. This Act shall take effect on June 29, 2002.