David C. Farmer, Successor-Trustee vs. Harmon
(Formerly Woo vs. Harmon & Nicholson vs. Harmon)
U.S. District Court For the District of Hawaii
Judges: David A. Ezra; Kevin S. Chang
—
DEFENDANT’S WITNESS
JUDGE THOMAS K. KAULUKUKUI, JR.
Chairman, Board of Trustees, Queen Liliuokalani Trust; former Circuit Judge appointed by Governor John Waihee.
QUEEN LILI`UOKALANI TRUST
Alakea Corporate Tower
1100 Alakea Street, Suite 1100
Honolulu, Hawai`i 96813
Telephone: (808) 203-6150
Facsimile: (808) 203-6151
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THE QUEEN LILI`UOKALANI TRUST
Thomas Ka‘auwai Kaulukukui, Jr. was appointed as trustee in 1998. Today, he serves as the chair of the Board of Trustees and Managing Trustee. His varied life experiences have helped him take a practical and direct approach to problem-solving and decision-making. He relies upon common sense, as well as education and experience.
He was born in Honolulu on November 11, 1945. He graduated from Kamehameha High School in 1963. He continued his education at Michigan State University where he majored in physical education with a minor in English and a cognate in philosophy. He graduated in 1967 with a Bachelor of Science Degree in education.
After graduation, he taught physical education in the public school system in Okemos, Michigan. From 1968 to 1970, he was a paratrooper in Vietnam, serving as an airborne platoon sergeant. He was honorably discharged in 1970 and decorated by both the United States and the Republic of Vietnam. After his military service, he returned to graduate school at Michigan State University, and specialized in exercise physiology.
When the opportunity arose, he returned to Hawaii in 1971 to teach physical education at Kailua High School where he served as the head wrestling coach and assistant football coach. He also taught English at Samuel Wilder King Intermediate School.
In 1974, he entered the William S. Richardson School of Law at the University of Hawai`i. He graduated from law school in 1977 and was admitted to the Bar of the State of Hawai`i. He was then selected from a national pool of applicants to be law clerk to Chief Judge Samuel P. King of the United States District Court for the District of Hawai`i, where he served for one year. He also served as a clerk to the federal appellate court (Ninth Circuit Court of Appeals) when Judge King sat by designation on the panel.
In 1978, he entered the private practice of law and handled a wide variety of civil cases before the state and federal courts, as well as state and federal administrative agencies. His law practice emphasized business litigation and related matters, but he also has substantial experience in matters involving planning, counseling and negotiation. He has served as court-appointed Commissioner, a Special Master to aid the court in handling difficult litigation, and court appointed guardian (legal guardian). He often donated his legal services to help those who would otherwise be unable to afford legal representation.
In March 1988, Governor John D. Waihee, III, appointed him to be a trial judge of the First Circuit Court in Honolulu. He presided over criminal trials, criminal motions, civil jury trials and civil motions. He served as the Arbitration Judge, and as the Land Court, Tax Appeal and Administrative Appeal Judge.
In March 1993, he relinquished his judgeship to work to improve the health of the people of Hawai‘i, and especially the health of Hawaiians. He became the vice president of Community Affairs, for the Queen’s Health Systems (QHS). At QHS, he worked to improve community health through a variety of programs, such as preventative health, education, housing, youth leadership and Hawaiian culture.
Judge Kaulukukui is a member of the Bar of the State of Hawai‘i, the United States District Court for the District of Hawai‘i, the Ninth Circuit Court of Appeals and the United States Supreme Court. He was appointed by the Hawaii Supreme Court to serve on the Board of Bar Examiners. He served on the board from 1982 to 1986. He was appointed a member of the Disciplinary Panel of the Hawai`i Supreme Court, and has also served as a member of the Disciplinary Board.
In 1995, he was appointed by Governor Benjamin Cayetano to be an O`ahu Commissioner of the Hawaiian Homes Commission, a position he held for nearly four years. He has also served as a board member of the March of Dimes, Pacific Islanders in Communication, Family Treatment Center, Winners at Work, and a congressional Advisory Committee for Minority Veterans. He is also an instructor and mentor in various leadership programs, including Hawaii Leadership Center, Pa Ulukukui Leadership Center, as well as several youth leadership programs.
Judge Kaulukukui and his wife, Joyce, have been married since 1967. They have three children and six grandsons.
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CHRONOLOGY OF
KEY EVENTS
1997
May 15, 1997: More than 500 Kamehameha Schools parents, students, alumni and supporters march on Bishop Estate headquarters to protest what they said was trustees' micromanagement of the Kapalama Heights campus.
Aug. 9, 1997: The "Broken Trust" article in the Star-Bulletin alleges mismanagement of Bishop Estate assets and conflicts of interests by trustees and criticizes selection of trustees by state Supreme Court justices.
Aug. 12, 1997: Gov. Ben Cayetano orders Attorney General Margery Bronster to investigate.
Dec. 12, 1997: Fact-finder Patrick Yim alleges that trustee Lokelani Lindsey managed Kamehameha Schools by "intimidation."
Dec. 20, 1997: Supreme Court justices remove themselves from selecting Bishop Estate trustees.
Dec. 29, 1997: Bishop Estate trustees Gerard Jervis and Oswald Stender seek Lindsey's removal.
1998
Sept. 9, 1998: Attorney General Margery Bronster calls for temporary removal of four trustees, saying they jeopardized the tax-exempt status of the trust.
Sept. 10, 1998: Bronster calls for removal of trustees Richard Wong, Henry Peters and Lindsey, charging they took part in a pattern of self-dealing and mismanagement.
Nov. 11, 1998: The trial to remove trustee Lokelani Lindsey begins.
Nov. 25, 1998: An Oahu grand jury indicts Peters on a charge of theft.
1999
March 11, 1999: Trustee Gerard Jervis is rushed to a hospital after taking an overdose of sleeping pills a week after a trust employee died in an apparent suicide. The day before her death, Jervis and the female worker were caught in a compromising position in a men's restroom by security workers at a Waikiki hotel.
April 12, 1999: Bishop Estate Chairman Wong is indicted on charges of first-degree theft, perjury and conspiracy.
April 27, 1999: IRS files a report saying it may revoke the tax-exempt status of the estate if the five trustees don't step down.
May 6, 1999: Circuit Judge Bambi Weil permanently removes Lindsey as trustee.
May 7, 1999: Probate Court Judge Kevin Chang temporarily removes four trustees and accepts Stender's resignation on an interim basis.
http://starbulletin.com/1999/05/08/news/story1a.html
http://www.kycbs.net/CV05-00030-Exhibit-GY.htm
http://www.kycbs.net/BH-CHRON-97-99.HTM
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June 27, 2007
FOR IMMEDIATE RELEASE
TRUSTEE DAVID M. PETERS ANNOUNCES RETIREMENT
HONOLULU – David M. Peters, long-time trustee of the Queen Liliuokalani Trust (Trust), announced that he will retire effective August 6, 2007 on his 84 th birthday. He was appointed a trustee in 1978.
“This culminates 29 years of dedicated service to the trust and its beneficiaries, who are the orphan and destitute children of Hawaii,” said Thomas Kaulukukui, Jr., chairman of the Board of Trustees. “During trustee Peters’ tenure, the Trust greatly expanded the number of beneficiaries served, built new facilities in rural Oahu and on neighbor islands, and solidified its strong financial base. We have all benefited from David’s wisdom, patience and grace. He has expressed his sound judgment and focused commitment to the Trust’s mission through exemplary conduct that has had powerful influence upon all who have come in contact with him. This is his legacy. He is a true Hawaiian, as well as an officer and a gentleman.”
Peters attended Kamehameha School and Maui High School. As a youth, he was an award-winning orator. In 1943, he became the first student from Maui ever to be appointed to the United States Military Academy. After graduation in 1946, he began a distinguished military career that took him to many areas of the world. He held many important posts, including command of a Special Forces unit, and positions on the staffs of commanding generals in Vietnam and Europe. He earned several awards and decorations, including the Silver Star for courageous action in Vietnam. He retired from the Army in 1976 as a full colonel after 30 years of service. Thereafter, for 14 years he served as Executive Assistant for United States Senator Daniel K. Inouye, in charge of the senator’s Honolulu office. Peters also serves as a community leader in many Hawaiian and other civic organizations.
“He is a real leader, in both word and deed,” said Patrick Yim, a retired judge who is the other trustee of the three-person board of trustees. “Since I joined the Trust in 2002, I have learned many lessons from Trustee Peters. One of the most important things he demonstrates is how a leader should carry himself, such as his physical bearing and character. David is always ramrod straight and forthright in his dealings. To know him is to know that he is a leader. He has set many high standards for us, and our challenge is to fill his seat with one who can meet these standards.”
“After almost three decades as a part of the Trust,” Peters stated, “I am pleased to be able to look back and reflect upon the positive change and particularly the growth in the Queen Liliuokalani Children’s Center during my tenure. I always sought to emphasize the primacy of our mission in serving orphaned and destitute Hawaiian children and I believe that we are now more focused than ever on this critical mission. Financially, the Trust is on sound footing and facing a long and bright future. It has been an honor for me to serve with my fellow Trustees and our dedicated staff in perpetuating the legacy of our beloved Queen.”
“David informed us a while ago of his intention to retire on his birthday, to ensure a seamless transition,” said Kaulukukui. “So a successor trustee has already been identified after a careful and complete search process, in accordance with our succession plan. The Trust will submit the nominee’s name to the Probate Court for appointment in accordance with the provisions of the trust document.”...
The Queen Liliuokalani Trust is a 501(c)(3) private operating foundation established by Queen Liliuokalani in 1909 and amended in 1911 for the benefit of orphaned and destitute children in Hawai‘i with preference given to those of pure or part aboriginal blood. The Trust serves thousands of beneficiaries annually through its Queen Liliuokalani Children’s Centers located through out the state.
www.onipaa.org/resources/Peters+Release+6-27-07.pdf
# # #
November 10, 2006
Fee for Waikiki high-rise offered
By Andrew Gomesm, Honolulu Advertiser
The Queen Lili'uokalani Trust, which fought against a law that would have forced it to convert leasehold property to fee simple, now plans to do so voluntarily.
The major Hawai'i land-owning trust was key to the repeal last year of a city ordinance forcing large landowners to sell land under residential condominiums.
But the Queen Lili'uokalani Trust is now offering the fee-simple interest in its 385-unit Lili'uokalani Gardens high-rise in Waikiki, and hopes to soon make similar offers to owners of two other leasehold condos, the 877-unit Waikiki Banyan and 435-unit Waikiki Sunset.
It isn't the first time the nonprofit trust has sold the fee interest in residential property, but the move represents an important effort by the nearly $400 million trust to diversify its assets and raise cash to invest in programs and facilities.
"Like most land-based trusts, we don't have very liquid assets," said trust Chairman and former Circuit Judge Thomas K. Kaulukukui Jr. "It's a business decision."
Potentially more than $100 million stands to be raised from the sale of land under the three buildings with nearly 1,700 units, based on rough estimates of land value. Sales, however, could take years depending on buyer response.
Peter Savio, a local real estate developer retained by the trust to sell the property, said his goal is to initially sell fee interests in 30 percent to 40 percent of units, with more made over time.
Fee prices were not disclosed by Savio or the trust, but will be presented to Lili'uokalani Gardens unit owners at a Saturday meeting.
Selling the land under the Waikiki Banyan and Waikiki Sunset is a trust aim, but requires consent of other nonprofit minority landowners — St. Francis Medical Center, which has a 45 percent stake in the Waikiki Sunset land, and Kawaiaha'o Church, which has an 8 percent stake in the Waikiki Banyan land.
Savio said the trust has not yet approached the two landowners because it wanted to first notify condo owners, which was done on Wednesday.
A fourth Waikiki condo with land owned by the trust, Foster Tower with 136 units, would not be sold because the property is on Kalakaua Avenue and has zoning for hotel use.
Kaulukukui said Probate Court masters for years have urged the trust to liquidate some of its real estate because of the risk of owning so much valuable land in one area.
The trust owns about 6,300 acres of largely agriculture and conservation land on the Big Island, 16 acres in Waikiki and eight acres elsewhere on O'ahu.
Kaulukukui said about 70 percent of the trust's income comes from its Waikiki real estate, which includes land under the Marriott Waikiki Beach, the Pacific Beach and Radisson Prince Kuhio hotels. The four Waikiki condos generate about 13 percent of trust revenue.
In the unlikely event that a natural disaster strikes Waikiki, the trust potentially could see most of its income wiped out, which was a major consideration in selling the condo property.
"Most of our land is within a half mile of the ocean," Kaulukukui said. "That makes it very valuable for the trust, but there is some risk having all those eggs in one basket."
(Little Catbird note: I believe that’s why you buy INSURANCE to cover the RISK...so you don’t have to SELL the properties to spread the RISK, isn’t it? In fact, isn’t it the LESSEES of the land who are the one’s who are normally the one’s obligated to buy the INSURANCE - and name the LESSOR as additional insureds? So doesn’t that shoot down the “all those eggs in one basket” excuse?)
Kaulukukui said trust directors carefully studied the condo land sale idea since the beginning of the year and in September voted to pursue it. "It's not the normal thing for our trust to sell its land, but sometimes you have to do it," he said.
Kaulukukui emphasized that the trust still opposes the government forcing large landowners to sell property as had been done under the city's controversial 1991 lease-to-fee conversion law.
The law had allowed leasehold condo owners to force a sale of the fee if 50 percent of owner-occupants petitioned to buy the land.
In 2002, the Hawai'i Supreme Court made it more difficult for condo owners to force such sales after a ruling clarified that the 50 percent requirement applied to all owners, not just owner-occupants.
The court decision and efforts by the city to change the law led the Queen Lili'uokalani Trust to mount a successful effort that resulted in the law's repeal last year.
The trust had never been forced to sell land under the law, but has voluntarily sold land under two residential projects, Queen Lili'uokalani Village on the Big Island in 1991 and Honolulu's Plaza at Century Court in 1993.
Queen Lili'uokalani, the last monarch of the Hawaiian Islands, died in 1917, leaving a will that created a trust to benefit Native Hawaiian orphans, and later other destitute children.
The trust, which operates the Queen Lili'uokalani Children's Center, last year directly served 5,180 children, and another 25,101 indirectly through other efforts.
Major projects of the trust include developing a regional shopping center on the Big Island with a partner and reinvesting in its charitable programs and facilities.
Reach Andrew Gomes at agomes@honoluluadvertiser.com.
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Hawaii
By Dave Donnelly
Sunday, May 13, 2001 THE WEEK THAT WAS
1974: It’s good to be king...
on the island of Oahu
ISN'T IT IRONIC that Dick Jenson has agreed to do a benefit for the Farrington High football team -- an organization he was once booted out of. But Dick will be at the Shell, June 7, for the team benefit along with Farrington alumni Nephi Hannemann and Earl (Tani) Takaoka, plus Al Harrington, a Punahou grad who was a teammate of Al Espinda, the current Farrington coach. Should be a great show for a good cause. (May 19, 1971) ...
Mauna Kea Beach Hotel guests, normally a taciturn bunch, are nonetheless whispering behind their hands these days, "Isn't that the guy from 'Blazing Saddles?'" And indeed it is -- the movie's writer and producer (and yes, he even acts up in it), Mel Brooks, is guesting at the Big Isle resort with his beautiful wife, Anne Bancroft, who is suddenly less recognizable than he. Also at the Mauna Kea -- and wouldn't a business deal between them be a natural -- is producer Hal Wallis, a regular visitor to the hotel. (May 19, 1974) ...
DEAN Witter Reynolds stockbroker Paul Loo has some good news and some bad news for his gas-hungry pals. The good news is that he and wife Vi have just purchased a gas station. The bad news is that it's located in Walnut Creek, Calif. (May 17, 1979) ...
Judge after judge was called to testify in the ticket-fixing trial of Fat Boy Okuda, prompting Judge Thomas Kaulukukui Jr. to ask from the bench after No. 7 was called, "Off the record, am I the only judge working today?" The jury cracked up. (May 25, 1989) ...
AS the community mourns the passing of Tommy Aguilar, who came to Hawaii with "A Chorus Line" in 1979 and put down roots here, friends of the actor/director continue with plans for Sunday's "Anyone Can Whistle" show at the Waikiki Terrace Hotel. Among the performers: Tony Ruivivar from the Society of Seven is flying in early from vacation to participate in the show-stopping "Phantom of the Opera" number; the Brothers Cazimero will open the show, because they have to board a plane to Maui, where they'll perform later in the day; and Loyal Garner is singing before she heads to the Monarch Room to conclude her engagement there. Tommy was so very helpful to me during the production of "Mame" I directed for the Army Community Theatre two years ago. He seemed so energetic staging major musical numbers, you'd never have guessed he was suffering from the effect of AIDS. (May 14, 1993) ...
http://starbulletin.com/2001/05/13/features/donnelly.html
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Pitluck Kido Stone & Aipa, LLP
"PUPUKAHI I HOLOMUA"
(Unite in Order to Progress)
Aloha kakou. - Welcome to our Web site.
Pitluck Kido Stone & Aipa, LLP is a small legal firm -- deliberately. We are organized in a fashion to accommodate the most complex legal matter without involving a multitude of attorneys.
The firm was established in 1980, when Wayne M. Pitluck opened his own law offices in the historic Alexander & Baldwin Building. The new office sought to put into effect all of the life and professional experiences which Wayne and his then associate, Thomas K. Kaulukukui, Jr., believed essential to the practice of law. The firm restricted its practice to the fields of business, real estate, and antitrust law, with an emphasis on risk reduction, i.e., how to minimize the risk of exposure to liability. In 1983, the Law Offices of Wayne Marshall Pitluck proudly became the law partnership of Pitluck & Kaulukukui.
In 1988, Tom Kaulukukui became Governor John Waihee's first judicial appointment and Tom left the firm to become Judge of the First Circuit of the State of Hawaii.
Today, with the addition of three more partners, Alan T. Kido, James M. K. Stone, Jr. and Nathan T. K. Aipa, Pitluck Kido Stone & Aipa, LLP continues to emphasize those elements upon which the practice began in 1980, and continues to offer services in business, real estate, estate planning, and alternative dispute resolution.
From its earliest inception, our firm's attorneys and staff have come from varied personal and professional backgrounds and life experience. In the aggregate, we have been attorney for the Federal Trade Commission, general counsel to a large charitable trust, Assistant General Counsel for a New York Stock Exchange listed company, criminal prosecutor, and we have been associates, partners, and founders of both small and large law firms in Hawaii and on the mainland. Currently, we have incorporated the best of each of our talents to enhance our practice of law, and to provide creative and personalized service to our clients.
The firm has always made its home in historic buildings in Honolulu and is presently in a unique space of its own design in The Dillingham Transportation Building on the corner of Bishop Street and Ala Moana Blvd. in downtown Honolulu.
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U.S. 9th Circuit Court of Appeals
HOU HAWAIIAN v CAYETANO
9815402v2
THE HOU HAWAIIANS, a Native
Hawaiian Tribal Ohana; NUI LOA
PRICE, Dr., individually and in his
capacity as Chief of the Hou
Hawaiians, aka Maui Loa;
KAMUELA PRICE, individually and
in his capacity as member of the
Elder Council of the Hou
Hawaiians,
Plaintiffs-Appellants,
v.
BENJAMIN CAYETANO, in his
No. 98-15402
capacity as Governor of the State
D.C. No.
of Hawaii; MICHAEL WILSON, in his
CV-97-00303-HG
capacity as Director of the
Department of Land and Natural
Resources of the State of Hawaii
and Chairman of the Board of
Land and Natural Resources;
CHRISTOPHER YUEN; WILLIAM
KENNISON; LYNN McCRORY;
MICHAEL NEKOBA; COLBERT
MATSUMOTO, in their capacities as
members of the Board of Land
and Natural Resources of the State
of Hawaii; KAZU HAYASHIDA, in
his capacity as Director of the
Department of Transportation of
the State of Hawaii and Chairman
of the Transportation Commission;
8239
JULLIET AIU; JAN AMII; WALTER
ARAKAKI; LESTER FUSHIKOSHI;
DENNIS HOKAMA; RICHARD KIBE;
MILLICENT KIM; DAVID RAE;
ALFRED WONG; NORMAN TSUJI;
WADSWORTH YEE, in their
capacities as members of the
Commission of Transportation of
the State of Hawaii; JERRY
MATSUDA, in his capacity as acting
head of the Airports Division of
the Department of Transportation
of the State of Hawaii; CLAYTON
HEE, in his capacity as Trustee and
Chairman of the Board of Trustees
of the Office of Hawaiian Affairs
of the State of Hawaii; ADELAIDE
DESOTO; ABRAHAM AIONA; MOSES
KEALE; HAUNANI APOLIONA; BILLIE
BEAMER; ROWENA AKANA; HANNAH
SPRINGER; COLLETTE MACHADO, in
their capacities as Trustees of the
Office of Hawaiian Affairs of the
State of Hawaii; KALI WATSON, in
his capacity as Director of the
Department of Hawaiian Home
Lands and Chairman of the
Hawaiian Homes Commission;
WONDA MAE AGPALSA; KAREN
HOLT; ROCKNE FREITAS; THOMAS
KAULUKUKUI, JR.; LLEWELLYN
KUMALAE; ANN NATHANIEL;
PATRICIA SHEEHAN; JOHN TOMOSO,
in their capacities as members of
the Hawaiian Homes Commission;
8240
THE STATE OF HAWAII; JANET RENO,
in her capacity as Attorney
General of the United States of
America; and BRUCE BABBITT, in
his capacity as Secretary of the
United States Department of the
Defendants-Appellees.
Appeal from the United States District Court
for the District of Hawaii
Helen Gillmor, District Judge, Presiding
Argued and Submitted
April 26, 1999--Honolulu, Hawaii
Filed June 4, 1999
Amended July 21, 1999
Before: Jerome Farris, John T. Noonan, and Susan P. Graber,
Circuit Judges.
Opinion by Judge Noonan
_________________________________________________________________
COUNSEL
Walter Schoettle, Honolulu, Hawaii, for the plaintiffs-
appellants.
Randall Young, Deputy Attorney General, Honolulu, Hawaii;
Lisa Jones, United States Department of Justice, Washington,
D.C.; Sherry Broder, Honolulu, Hawaii, for the defendants-
appellees.
_________________________________________________________________
ORDER
The slip opinion filed on June 4, 1999 is amended as fol-
lows:
P.5700 - Add to P 2 after "breaches of trust," the follow-
ing: At the same time the Hou declare unequivocally in their
briefing that they are not seeking retroactive relief.
Strike all of sections 2 and 3.
_________________________________________________________________
OPINION
NOONAN, Circuit Judge:
The Hou Hawaiians, Nui Loa Price, and Kamuela Price
(collectively the Hou) brought this suit against several federal
and state officials in their official capacities. The district court
denied the Hou's motion for summary judgment and dis-
missed their complaint against all defendants.
This case is another episode in legal warfare going back
twenty years, which has from time to time come to this court.
See, e.g., Rice v. Cayetano, 146 F.3d 1075 (9th Cir. 1998);
Han v. United States Department of Justice, 45 F.3d 333 (9th
Cir. 1995); Price v. Akaka (Price V), 3 F.3d 1220 (9th Cir.
1993); Price v. Hawaii (Price IV), 939 F.2d 702 (9th Cir.
1991); Price v. Akaka (Price III), 928 F.2d 824 (9th Cir.
1991); Price v. Hawaii (Price II), 921 F.2d 950 (9th Cir.
1990); Price v. Hawaii (Price I), 764 F.2d 623 (9th Cir.
1985). We rely on the history and holdings of those cases in
reaching a decision here. Nonetheless, as certain of the issues
raised are new, we publish this opinion affirming the district
court in order to further delineate the respective rights and
responsibilities of the parties.
THE CLAIM AGAINST THE FEDERAL DEFENDANTS
Section 5 of the Hawaii Admission Act, Pub. L. No. 86-3,
73 Stat. 4 (1959), granted to the State of Hawaii most of the
lands there held by the United States and declared that the
lands should be held as a public trust. The Act specified five
purposes of the trust and stated that the lands should be held
for one or more of the five specified purposes as the constitu-
tion and laws of Hawaii should provide. The Act added: "their
use for any other object shall constitute a breach of trust for
which suit may be bought by the United States." Pub. L. No.
86-3, 73 Stat. 4 S 5(f) (1959).
The Hou contend that this final phrase imposed a duty upon
the United States to sue the State of Hawaii if the state
breached the trust. The Hou contend that federal failure to act
amounts to such an abuse of discretion and such a failure to
carry out the policy of the statute that mandamus lies to com-
pel the United States to bring suit.
[1] The immediate obstacle to this contention is the sover-
eign immunity of the United States. That immunity has not
been waived by section 5. That immunity has not been waived
by the mandamus statute, 28 U.S.C. S 1361. See Washington
Legal Found. v. United States Sentencing Commission , 89
F.3d 897, 901 (D.C. Cir. 1996). The Administrative Procedure
Act, 5 U.S.C. S 702, waives immunity only for claims alleg-
ing that an official's actions "were unconstitutional or beyond
statutory authority." Swan v. Clinton, 100 F.3d 973, 981 (D.C.
Cir. 1996). Under section 5, the United States has no duty to
prosecute the State of Hawaii. See Han, 45 F.3d at 337. The
federal enforcement policy is not "so inadequate as to be
beyond the limits of [the federal defendants' ] discretion." Id.
at 338. The bar is absolute and fatal to the claim against the
federal defendants.
THE CLAIMS AGAINST THE STATE DEFENDANTS
Section 4 of the Hawaii Admission Act provides:"As a
compact with the United States relating to the management
and disposition of the Hawaiian home lands, the Hawaiian
Homes Commission Act, 1920, as amended, shall be adopted
as a provision of the Constitution of [the State of Hawaii]."
Pub. L. No. 86-3, 73 Stat. 4 S 4 (1959). The Hawaiian Homes
Commission Act (the HHCA) was accordingly made part of
that constitution. See Haw. Const. art. XII,S 1. The HHCA,
S 207 provides that the Department of Hawaiian Homelands
(DHHL) "is authorized to lease to native Hawaiians the right
to the use and occupancy of a tract or tracts of Hawaiian home
lands," and DHHL "shall, whenever tracts are available, enter
into such a lease with any applicant who, in the opinion of the
department, is qualified to perform the conditions of such
lease." Pub. L. No. 67-34, 42 Stat. 108 S 207 (1921). One of
the five purposes specified by section 5(f) of the Admission
Act is "the betterment of the conditions of native Hawaiians,
as defined in the [HHCA]." Pub. L. No. 86-3, 73 Stat. 4 S 5(f)
(1959). A "native Hawaiian" is "any descendant of not less
than one-half part of the races inhabiting the Hawaiian Islands
previous to 1778, as defined by the [HHCA]. " Haw. Rev.
Stat. S 10-2.
The Hou contend that the state defendants have violated
and will continue to violate section 5 of the Admission Act by
not giving priority to the betterment of the native Hawaiians
by funding homesteads for them. To remedy the claimed vio-
lations, the Hou seek an injunction compelling the state defen-
dants to expend income from the section 5 lands for no other
purpose than providing each eligible native Hawaiian with a
homestead. Alternatively, the Hou ask that income from sec-
tion 5 be devoted exclusively to satisfying the $600 million
settlement that the state made in 1995 with DHHL in satisfac-
tion of previous breaches of trust. At the same time the Hou
declare unequivocally in their briefing that they are not seek-
ing retroactive relief.
[2] To the extent that the Hou's request is for an injunction
requiring future funding of homesteads from section 5 lands,
the selection of beneficiaries eligible for such homesteads,
and the elimination of requirements unduly burdening possi-
ble beneficiaries, no inexorable jurisdictional barrier is
encountered. We have held that Hawaii does not escape the
trust imposed on section 5 lands by transferring them to any
department, including OHA, to be administered. See Price III,
928 F.2d at 827. The trustees have federal obligations and
may be sued in federal court under S 1983 if they have
breached their trust. See id. Nonetheless, because section 5
does not demand that the state "deal with its property in any
particular manner," a challenge to the management of section
5 land is not a federally cognizable claim. Price II, 921 F.2d
at 956.
[3] The Hou take comfort in footnote 1 of the just-cited
opinion, which reads: "This case does not involve the admin-
istration of the Hawaiian home lands." Id. at 955 n.1. This
case does. But we are still bound by the determination of
Price II that the state is not to be treated as a private trustee
in the management of the property entrusted to it. A stated
grievance in the Hou's complaint is that OHA has
"wrongfully been accumulating income from the Trust Lands
while inadequate funds have been allocated for the provision
of infrastructure for implementation of HHCA." This charge
disputes the priorities of OHA, a matter within its manage-
ment prerogative. The requirements for the award of home-
steads and priorities among possible beneficiaries are of a
similar character. In compliance with its fiduciary obligations,
OHA could not ignore the beneficiaries of the trust in favor
of nonbeneficiaries, or take no steps to identify the beneficia-
ries, but it is entitled to determine in a fair and reasonable way
the beneficiaries who qualify for homesteads.
For the forgoing reasons, the judgment of the district court
is AFFIRMED. the end
~ ~ ~
Judge Thomas Kauwai Kaulukukui, Jr. is expected to testify testify regarding his professional, business, personal and political relationships with Queen Liliuokalani Trust, Judge Kevin Chang, Kenneth Brown, Beadie Dawson, Judge Eden Elizabeth Hifo; John Waihee III; John Waihee IV; Kamehameha Schools’ Trustees, Matsuo Takabuki, Henry Peters *, Richard S.H. Wong, Colleen Hanabusa, Gerard Jervis, Lokelani Lindsey, Oswald Stender, J. Douglas Ing *, Constance Lau, Diane Plotts, Francis Keala, Ronald Libkuman, Robert K.U. Kihune, Nainoa Thompson; Janet Hughes, IRS; Ben Cayetano; Colbert Matsumoto; Benjamin Matsubara; Warren Price III; Hugh Jones; Terrance Tom; Clayton Hee; Haunani Apoliona; Office of Hawaiian Affairs; Richard Frunzi; Louise Ing; Paul Alston; Hamilton McCubbin; Dee Jay Mailer; Art Woolaway; Gray Line Hawaii; Jack’s Tours; Nathan Aipa; Colleen Wong; Louanne Kam; Michael Chun; Gilbert Tam; William S. Richardson; Rocco Sansone; Marsh & McLennan; P&C Insurance Co.; Federal Insurance Co.; XL Insurance Co.; Wayne Metcalf; J.P. Schmidt; Guido Giacometti; Margery Bronster; Earl Anzai; Lyn Flanigan Anzai; Irene A. Anzai; Carol Richelieu; David Fairbanks; Clyde Matsui; Jeffrey Watanabe; Michael Tanoue; Daniel Inouye; Daniel Akaka; Robert Bennett; Robert Katz; Steven Guttman; Alan Ma; Judith Neustadter Fuqua; Arnold Phillips II, Robert Richards; Morgan, Lewis & Bockius; Miller & Chevalier; Jeffrey Stone; Mari Stone Wong; Peter Lowe; Gary Rodrigues; Pacific Group Medical Association; Hawaii Medical Services Association (HMSA); University of Hawaii Foundation, Hazel Beh (University of Hawaii)*; Walter Beh (Rush Moore)*; McCorriston, Miho, Miller & Mukai law firm; Judge Harold Shintaku*; Jason T. Ibarra, JTI International, JTI Foundation; Donald Ibara, Copiers Hawaii, Inc.; Robin Taibbi, Island Spirit; Curtis Ching; James B. Nicholson, June Jones, Ron Rewald, Sukamto Sia, Mary Lou Woo, Randy Roth, Peter Carlisle, Jeffrey Portnoy, Kenneth Starr, Judge Mary Schroder, Edward Halealoha Ayau, Judge Alan Kay, Judge Michael Seabright, Judge Colleen Hirai, Judge Alan Kay, Judge Michael Town, Judge James Duffy, Judge Rey Graulty, Kirk Cashmere, Carol Muranaka, David Farmer, Susan Ichinose, Council of Native Hawaiian Affairs, and others to be named upon discovery.
Internet References:
JUDICIAL INDEPENDENCE IN HAWAII (OR LACK THEREOF)
http://www.lwv-hawaii.com/judicial.htm
CHRONOLOGIES
www.kycbs.net/BH-CHRON-88-96.htm
www.kycbs.net/BH-CHRON-97-99.htm
www.kycbs.net/BH-Settlement-Chronology.htm
LETTERS, DOCUMENTS, NEWS ARTICLES AND RELATED LINKS
http://starbulletin.com/specials/bishop/index.html
www.kycbs.net/QueenLilTrust.htm
www.kycbs.net/School-Vultures.htm
www.topix.net/forum/us/federal-court-9th/TCRT1N7UULMTTHG64
www.starbulletin.com/2006/08//15/news/story12.html
www.kycbs.net/BH-Documents.htm
http://starbulletin.com/97/11/24/editorial/shapiro.html *
www.kycbs.net/KSBE-vs-BNH-Goemans-Free-Speech.htm
www.kycbs.net/Doc-Guttman-To-AAA-6-19-4.pdf
www.kycbs.net/KSBE-INTERROGATORIES.htm
http://starbulletin.com/98/02/20/news/story2.html
http://starbulletin.com/98/04/15/news/story7.html *
http://www.hsba.org/HSBA/Legal_Research/Hawaii/sc/16851.cfm *
www.starbulletin.com/98/09/11/news/removal.html
www.starbulletin.com/98/03/04/news/story3.html
http://starbulletin.com/98/07/31/news/satnews.html
www.starbulletin.com/1999/05/06/news/story2.html
http://starbulletin.com/1999/06/26/news/story8.html
www.starbulletin.com/1999/07/02/news/story2.htm
www.starbulletin.com/1999/07/20/news/story2.html
www.ksbe.edu/allpdfs/summer99/summer99.pdf *
www.starbulletin.com/1999/08/21/news/ *
http://starbulletin.com/1999/09/03/news/story11.html *
http://starbulletin.com/1999/09/14/news/story3.html *
http://starbulletin.com/1999/09/15/news/story4.html
http://starbulletin.com/1999/09/16/editorial/letters.html *
www.starbulletin.com/1999/09/23/news/ *
http://the.honoluluadvertiser.com/1999/Sep/24/localnews4.html
www.starbulletin.com/1999/09/25/editorial/ *
http://www.starbulletin.com/1999/11/19/news/ *
http://starbulletin.com/1999/12/01/news/story1.html
http://starbulletin.com/2000/05/18/news/story1.html *
http://the.honoluluadvertiser.com/2000/Jun/24/localnews13.html
http://starbulletin.com/2000/09/08/news/story1.html
http://starbulletin.com/2000/09/16/news/story1.html
www.starbulletin.com/2000/11/03/news/story1.html
http://starbulletin.com/2000/12/09/news/story3.html
http://starbulletin.com/2000/12/22/business/story1.html
http://the.honoluluadvertiser.com/2001/Mar/15/ln/ln21a.html
http://starbulletin.com/2001/07/20/business/story1.html
www.starbulletin.com/2001/08/28/business/story1.html
www.kycbs.net/CV05-00030-Complaint-Appeal-6-27-5.htm
http://the.honoluluadvertiser.com/2000/Jun/24/localnews13.html
http://www.state.hi.us/jud/2001soj.htm
http://starbulletin.com/2001/08/04/news/story9.html
www.namebase.org/cgi-bin/nb06?BISHOP_ESTATE_%28HAWAII%29
www.kycbs.net/McCubbin-7-26-00.htm
www.kycbs.net/McCubbin-MorganLewis.htm
www.kycbs.net/Claim-IRS-10-10-0.htm
www.kycbs.net/AAA-SEC-10-20-0.htm
www.kycbs.net/Harmon-Trustees.htm
www.kycbs.net/Claim-Guttman-8-4-4.htm
www.kycbs.net/Claim-Island-9-23-4.htm
www.kycbs.net/Claims-By-Harmon.htm
www.kycbs.net/Royal-SunAmerica.htm
www.kycbs.net/PunaConnection.htm
www.kycbs.net/FiringDobelle.htm
www.kycbs.net/GensiroKawamoto.htm
www.kycbs.net/Alexander-Baldwin.htm
http://starbulletin.com/2005/09/20/news/index6.html
www.kycbs.net/ConsueloFoundation.htm
www.kycbs.net/SandwichIsles.htm
www.starbulletin.com/97/05/13/business/bizbriefs.html
www.bizjournals.com/pacific/stories/1997/09/15/story1.html
www.starbulletin.com/98/02/06/editorial/editorials.html
www.kycbs.net/SettlementChronology.htm
www.starbulletin.com/1999/12/21/news/story3.html
www.starbulletin.com/2000/07/14/news/briefs.html
www.starbulletin.com/2000/09/16/news/story1.html
www.kycbs.net/HarmonArbitration.htm
www.kycbs.net/McCubbin-MorganLewis.htm
www.starbulletin.com/2003/08/29/news/index6.html
www.kycbs.net/Claim-Island-9-27-4.htm
www.kycbs.net/Claim-Woo-10-1-4.htm
www.kycbs.net/Claim-Island-2-4-5.htm
www.kycbs.net/CV05-00030-Judge-Chang-2-14-5.htm
www.kycbs.net/CV05-00030-Answer.htm
www.kycbs.net/CV05-00030-PC-Tender-3-7-5.htm
www.kycbs.net/Claim-Island-3-7-5.htm
www.kycbs.net/Claim-IRS-3-28-5.htm
www.kycbs.net/CV05-00030-Prelim-Docs-List.htm
www.kycbs.net/CV05-00030-SC-Statement-4-9-5.htm
www.kycbs.net/CV05-00030-BH-Motion-4-9-5.htm
www.kycbs.net/CV05-00030-Complaint-Judges-4-25-5.htm *
www.kycbs.net/CV05-00030-Complaint-Chang-5-16-5.htm
www.kycbs.net/CV05-00030-Complaint-Ezra-6-6-5.htm
www.kycbs.net/CV05-00030-Witness-Richards-6-14-5.htm
www.starbulletin.com/2005/06/15/news/index7.html
www.kycbs.net/CV05-00030-Appeal-Brief.htm
www.kycbs.net/CV05-00030-Witness-Bennett-7-22-5.htm
www.kycbs.net/CV05-00030-Exhibit-List-Rev-8-1-5.htm
www.kycbs.net/CV05-00030-Witness-Boyd-Ralph.htm
www.kycbs.net/CV05-00030-Witness-Fuqua-Judith.htm
www.kycbs.net/CV05-00030-Witness-Guttman-Steven.htm
www.hid.uscourts.gov/HID/Welcome.nsf/mediators?OpenPage
First Amendment Rights/Obstruction of Justice
www.kycbs.net/DOL-Koza-3-5-97.pdf
http://starbulletin.com/97/08/20/news/story1.html
http://starbulletin.com/97/08/26/news/story1.html
http://starbulletin.com/97/09/23/news/story2.html
http://starbulletin.com/97/10/03/news/story2.html
http://starbulletin.com/2006/03/15/editorial/letters.html
www.kycbs.net/KSBE-vs-BNH-Goemans-Free-Speech.pdf
www.kycbs.net/CV05-00030-Answer.htm
www.kycbs.net/CV05-00030-Hughes-Roy-8-4-5.htm
www.kycbs.net/CV05-00030-Guttman-8-6-5.htm
www.kycbs.net/CV05-00030-Appeal-Brief.htm
www.kycbs.net/Freedom-To-Sing.htm
Hawaii Dept. of Labor - CV 98-2394-05 - Unemployment Insurance Appeal
www.kycbs.net/DOL-Koza-3-5-97.pdf
www.kycbs.net/DOL-Reply-Brief-11-6-98.htm
www.kycbs.net/DOL-Appeal-Append-A.pdf
RICO Lawsuit - 99-CV-00304-DAE-BMK
www.kycbs.net/RICO-Case-Summary.pdf
www.kycbs.net/RICO-Parties.pdf
www.kycbs.net/RICO-Attorneys.pdf
www.kycbs.net/Settlement-Page1-Signatures.pdf
www.kycbs.net/Settlement-Exhibit5-Filed-3-24-0.pdf
Equity 2048 -The Richards Report
http://www2.hawaii.edu/~rroth/Richards%20Master%20Report.doc
XL Reinsurance Policy No. XLRKS-01796
www.kycbs.net/Doc-EQ2048-XL-Policy-Dec.pdf
www.kycbs.net/Doc-EQ2048-XL-Policy.pdf
www.kycbs.net/Doc-EQ2048-XL-Policy-Append.pdf
Equity 2048 - Related Correspondence and Documents
www.kycbs.net/Doc-EQ2048-Mediation-Order-3-9-0.pdf
www.kycbs.net/EQ2048-Anzai-McCubbin-4-27-0.pdf
www.kycbs.net/EQ2048-AG-Trustees-4-27-0.pdf
www.kycbs.net/EQ2048-Miyagi-AG-4-27-0.pdf
www.kycbs.net/Doc-EQ2048-Seal-Docs-5-3-0.pdf
www.kycbs.net/Doc-EQ2048-PC-Peters-5-5-0.pdf
www.kycbs.net/Doc-EQ2048-AG-Witnesses-5-19-0.pdf
www.kycbs.net/EQ2048-XL-Miyagi-AG-5-26-0.pdf
www.kycbs.net/Doc-EQ2048-Form990-1998-pdf
www.kycbs.net/EQ2048-DiscoveryFees-5-30-0.pdf
www.kycbs.net/EQ2048-AG-Objection-6-23-0.pdf
www.kycbs.net/EQ2048-Federal-Response-6-23-0.pdf
www.kycbs.net/EQ2048-Deposition-Notice-7-21-0.pdf
IRS Closing Agreement for Kamehameha Schools
www.kycbs.net/KSBE-IRSagrmnt.pdf
www.kycbs.net/KSBE-IRSagrmnt2.pdf
The Na Kumu Book Advisory Group
www.kycbs.net/NaKumuBook-6-10-4.htm
www.kycbs.net/NaKumuBook-6-12-4.htm
www.kycbs.net/Doc-Guttman-To-AAA-6-19-4.pdf
Apartheid, Hawaiian Style
www.kycbs.net/Apartheid-Hawaii.htm
Broken Trust: Greed, Mismanagement & Political Manipulation
www.kycbs.net/Broken-Trust-Book.htm
Lost Generations: A Boy, A School, A Princess
www.kycbs.net/Lost-Generations.htm
TO GO TO THE WOO VS. HARMON WITNESS INDEX
Originally posted: July 1, 2005, by The Catbird
Last updated: July 28, 2008