Bill Text: HI SB2113 | 2020 | Regular Session | Introduced

Hawaii Senate Bill 2113 (Prior Session Legislation)

NOTE: There are more recent revisions of this legislation. Read Latest Draft

Bill Title: Relating To Hawaiian Home Lands.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2020-02-11 - Report adopted; Passed Second Reading, as amended (SD 1) and referred to JDC/WAM. [SB2113 Detail]

Download: Hawaii-2020-SB2113-Introduced.html

THE SENATE	S.B. NO.	2113
THIRTIETH LEGISLATURE, 2020
STATE OF HAWAII

A BILL FOR AN ACT

relating to hawaiian home lands.

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

PART I

SECTION 1. The legislature finds that in the Hawaiian Homes Commission Act, 1920, as amended, the United States Congress established the Hawaiian home lands trust, intending that it would enable its native Hawaiian beneficiaries to return to their land to improve and perpetuate their self-sufficiency and cultural preservation. Administered by the department of Hawaiian home lands, the Hawaiian Homes Commission Act authorizes issuance of leases of available lands to native Hawaiians for occupancy, and of licenses for theaters, garages, service stations, markets, stores, and other mercantile establishments, all of which shall be owned by native Hawaiians or by organizations formed and controlled by native Hawaiians.

The legislature further finds that over the past one hundred years, the number of native Hawaiians eligible for a lease or license under the Hawaiian Homes Commission Act has declined by approximately seventy-five per cent, and there may be as few as twenty-five thousand eligible native Hawaiians remaining. During this time, as well documented in reports by the auditor and others, the department of Hawaiian home lands has struggled to place native Hawaiians on their land, challenged by a lack of funding and its own bureaucratic shortcomings. More recently, the department has sought to maximize its income by focusing on its authority to dispose of lands that it determines are not necessary to lease to native Hawaiians for housing, by leasing it to the general public pursuant to the provisions of chapter 171, Hawaii Revised Statutes.

The legislature also finds that while the department of Hawaiian home lands is expressly authorized to negotiate, prior to negotiations with the general public, the disposition of Hawaiian home lands to a native Hawaiian, or organization or association owned or controlled by native Hawaiians, for commercial, industrial, or other business purposes, the department has adopted a de facto policy declining to do so. Rather, the department requires native Hawaiians to compete in a bidding war against well-financed for-profit corporations, often from the mainland, who may not employ native Hawaiians, use native Hawaiian subcontractors and suppliers, or have any ongoing commitment to native Hawaiian self-sufficiency or cultural preservation. Instead, these entities seek only to maximize profits for their investors. This policy is contrary to the purpose of the Hawaiian Homes Commission Act, not reflected in the department's administrative rules, and may constitute prohibited rulemaking in violation of the Hawaii Administrative Procedures Act, chapter 91, Hawaii Revised Statutes. See, e.g., Nuuanau Valley Ass'n v. City and County of Honolulu, 119 Hawaii 90, 194 P.3d 531 (2008).

The legislature further finds that in addition to the department of Hawaiian home lands' failure to place the vast majority of eligible native Hawaiians on their land, its policy not to first negotiate with its own beneficiaries in the development of their own commercial, industrial, and other business purposes, works to prevent them from becoming independent, self-sufficient, and self-reliant. Rather than capitalizing native Hawaiians' own projects with land and empowering them to support themselves and their communities on a day-to-day basis, the department empowers only itself, and keeps its beneficiaries in a patronizing state of dependency.

The purpose of this Act is to:

(1) Require the department of Hawaiian home lands to negotiate with native Hawaiians for the development of their own commercial, industrial, and other business purposes before offering land sought by them to the general public; and

(2) Require the department of Hawaiian home lands to report annually to the legislature regarding each disposition of available land for commercial purposes, including when disposition of lands was ultimately made to the general public and why its negotiations with native Hawaiians did not succeed.

PART II

SECTION 2. Section 204, Hawaiian Homes Commission Act, 1920, as amended, is amended by amending subsection (a) to read as follows:

"(a) Upon the passage of this Act, all available lands shall immediately assume the status of Hawaiian home lands and be under the control of the department to be used and disposed of in accordance with the provisions of this Act, except that:

(1) In case any available land is under lease by the Territory of Hawaii, by virtue of section 73 of the Hawaiian Organic Act, at the time of the passage of this Act, such land shall not assume the status of Hawaiian home lands until the lease expires or the board of land and natural resources withdraws the lands from the operation of the lease. If the land is covered by a lease containing a withdrawal clause, as provided in section 73(d) of the Hawaiian Organic Act, the board of land and natural resources shall withdraw such lands from the operation of the lease whenever the department gives notice to the board that the department is of the opinion that the lands are required by it for the purposes of this Act; and such withdrawal shall be held to be for a public purpose within the meaning of that term as used in section 73(d) of the Hawaiian Organic Act.

(2) Any available land, including lands selected by the department out of a larger area, as provided by this Act, not leased as authorized by section 207(a) of this Act, may be returned to the board of land and natural resources as provided under section 212 of this Act, or may be retained for management by the department. Any Hawaiian home lands general lease issued by the department after June 30, 1985, shall contain a withdrawal clause allowing the department to withdraw the land leased at any time during the term of the lease for the purposes of this Act.

In the management of any retained available lands not required for leasing under section 207(a), the department may dispose of those lands or any improvements thereon to the public, including native Hawaiians, on the same terms, conditions, restrictions, and uses applicable to the disposition of public lands in chapter 171, Hawaii Revised Statutes; provided that the department may not sell or dispose of such lands in fee simple except as authorized under section 205 of this Act; provided further that the department [~~is expressly authorized t~~o] shall negotiate, prior to [~~negotiations with~~] any disposition to the general public, the disposition of Hawaiian home lands or any improvements thereon to a native Hawaiian, or organization or association owned or controlled by native Hawaiians, for commercial, industrial, or other business purposes, in accordance with the procedures set forth in chapter 171, Hawaii Revised Statutes.

(3) The department, with the approval of the Secretary of the Interior, in order to consolidate its holdings or to better effectuate the purposes of this Act, may exchange the title to available lands for land, privately or publicly owned, of an equal value. All lands so acquired by the department shall assume the status of available lands as though the land were originally designated as available lands under section 203 of this Act, and all lands so conveyed by the department shall assume the status of the land for which it was exchanged. The limitations imposed by section 73(l) of the Hawaiian Organic Act and the land laws of Hawaii as to the area and value of land that may be conveyed by way of exchange shall not apply to exchanges made pursuant hereto. No such exchange of land publicly owned by the State shall be made without the approval of two-thirds of the members of the board of land and natural resources. For the purposes of this paragraph, lands "publicly owned" means land owned by a county or the State or the United States."

SECTION 3. Section 171-59, Hawaii Revised Statutes, is amended to read as follows:

"§171-59 Disposition by negotiation[.]; negotiation with native Hawaiians for disposition of Hawaiian home lands. (a) A lease of public land may be disposed of through negotiation upon a finding by the board of land and natural resources that the public interest demands it[.]; provided that prior to any disposition of Hawaiian home lands to the general public pursuant to section 204, Hawaiian Homes Commission Act, 1920, as amended, the department of Hawaiian home lands shall negotiate a disposition to a native Hawaiian, or an organization or association owned or controlled by native Hawaiians, for commercial, industrial, or other business purposes, pursuant to subsection (c). Where the public land is being sought under this section by a sugar or pineapple company, and the company is the owner or operator of a mill or cannery, then, for the purposes of this section, the economic unit shall be that acreage of public land which when taken together with the lands already owned or controlled or available to the company, when cultivated is found by the board to be necessary for the company's optimum mill or cannery operation. In all other cases, public land to be sold under this section shall be an economic unit as provided in section 171-33(3).

After a determination is made to negotiate the disposition of a lease, the board shall:

(1) Give public notice as in public auction, in accordance with the procedure set forth in section 171-16(a), of its intention to lease public land through negotiation setting forth the minimum conditions thereunder, the use for which the public land will be leased. Any person interested in securing the lease shall file an application with the board not later than forty-five days after the first publication of the notice;

(2) Establish reasonable criteria for the selection of the lessee; provided that where the intended use of the land is agriculture, the department of agriculture shall establish the criteria;

(3) Determine the applicants who meet the criteria for selection set by the board or the department of agriculture, as the case may be, and notify all applicants of its determination. Any applicant may examine the basis of the determination, which shall be in writing, to ascertain whether or not the conditions and criteria established by the board or the department of agriculture were followed; provided that if any applicant does not notify the board of the applicant's objections, and the grounds therefor, in writing, within twenty days of the receipt of the notice, the applicant shall be barred from proceeding to seek legal remedy for any alleged failure of the board to follow the conditions and criteria.

If only one applicant meets the criteria for selection of the lessee, the board may, after notice as provided in (3), above, dispose of the lease by negotiation.

If two or more applicants meet the criteria for the selection of the lessee, the board shall select the lessee who submits the highest offer contained in a sealed bid deposited with the board.

(b) Disposition of public lands for airline, aircraft, airport-related, agricultural processing, cattle feed production, aquaculture, marine, maritime, and maritime-related operations may be negotiated without regard to the limitations set forth in subsection (a) and section 171-16(c); provided that:

(1) The disposition encourages competition within the aeronautical, airport-related, agricultural, aquaculture, maritime, and maritime-related operations;

(2) The disposition shall not exceed a maximum term of thirty-five years, except in the case of:

(A) Maritime and maritime-related operations, which may provide for a maximum term of seventy years; and

(B) Aquaculture operations, which may provide for a maximum term of sixty-five years; provided that aquaculture operations in good standing may seek to renew a lease issued under this section and, during the lease term, may engage in supportive activities that are related to or integrated with aquaculture; and

(3) The method of disposition of public lands for cattle feed production as set forth in this subsection shall not apply after December 31, 1988.

For the purposes of this subsection:

"Agricultural processing" means the processing of agricultural products, including dairying, grown, raised, or produced in Hawaii.

"Airport-related" means a purpose or activity that requires air transportation to achieve that purpose or activity; or an activity that generates revenue for the airport system as provided in section 261-7.

"Aquaculture" means the propagation, cultivation, or farming of aquatic plants and animals in controlled or selected environments for research, commercial, or stocking purposes, including aquaponics or any growing of plants or animals with aquaculture effluents.

"Maritime-related" means a purpose or activity that requires and is directly related to the loading, off-loading, storage, or distribution of goods and services of the maritime industry.

(c) When negotiating disposition of a lease for Hawaiian home lands to native Hawaiians, or an organization or association owned or controlled by native Hawaiians, for commercial, industrial, or other business purposes, the department of Hawaiian home lands shall:

(1) Give public notice to native Hawaiians in a culturally appropriate manner of its intention to lease Hawaiian home lands land through negotiation, setting forth the minimum conditions thereunder and the use for which the public land will be leased. Any person interested in securing the lease shall file an application with the board not later than forty-five days after notice has been given;

(2) Establish reasonable criteria for the selection of the lessee, including primarily that the lease furthers the betterment of native Hawaiians; and

(3) Determine the applicants who meet the conditions and criteria for selection and notify all applicants of its determination. Any applicant may examine the basis of the determination, which shall be in writing, to ascertain whether or not the conditions and criteria established by the department of Hawaiian home lands were followed; provided that if any applicant does not notify the board of the applicant's objections, and the grounds therefor, in writing, within thirty days of the receipt of the notice, the applicant shall be barred from proceeding to seek legal remedy for any alleged failure of the department to follow the conditions and criteria.

If only one applicant meets the criteria for selection of the lessee, the board may, after notice as provided in subsection (3), above, dispose of the lease by negotiation.

If two or more applicants meet the criteria for the selection of the lessee, the board shall select the lessee who submits the offer best designed to achieve the betterment of native Hawaiians.

The department of Hawaiian home lands shall adopt rules, pursuant to chapter 91, necessary for the purposes of this subsection."

PART III

SECTION 4. The department of Hawaiian home lands shall submit a report to the legislature no later than twenty days prior to the convening of each regular session setting forth the following:

(1) The total number of dispositions by lease of Hawaiian home lands pursuant to the second paragraph of section 204(a)(2), Hawaiian Homes Commission Act, 1920, as amended;

(2) Of the total in paragraph (1):

(A) The number of dispositions to native Hawaiians, or organizations or associations owned or controlled by native Hawaiians;

(B) The number of dispositions to the general public that took place only after negotiations for dispositions to dispositions to native Hawaiians, or organizations or associations owned or controlled by native Hawaiians were not successful, and the reasons therefor in each instance; and

(3) The department's findings and recommendations, including any proposed legislation, to increase the number of successful negotiations for dispositions to native Hawaiians, or organizations or associations owned or controlled by native Hawaiians.

SECTION 5. The provisions of the amendments made by this Act to the Hawaiian Homes Commission Act, 1920, as amended, are declared to be severable, and if any section, sentence, clause, or phrase, or the application thereof to any person or circumstances is held ineffective because there is a requirement of having the consent of the United States to take effect, then that portion only shall take effect upon the granting of consent by the United States and effectiveness of the remainder of these amendments or the application thereof shall not be affected.

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

SECTION 7. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

Report Title:

DHHL; Hawaiian Home Lands; Disposition; Negotiation; Beneficiaries

Description:

Requires the department of Hawaiian home lands to negotiate with native Hawaiians before offering Hawaiian home lands for lease to the public by auction. Requires annual report regarding negotiations.

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