Hawaii-2011-SR112-Introduced

WHEREAS, in 1920, the United States Congress enacted the Hawaiian Homes Commission Act to award 99-year homestead leases to qualified native Hawaiians as a measure to recognize the severe disruptions in the political, social and economic circumstances that led to the widespread loss of lands to Hawaiians since western contact; and

WHEREAS, in 1959, the state of Hawaii agreed, in a compact with the United States, to assure that the spirit of the Hawaiian Homes Commission Act was faithfully administered for the benefit of native Hawaiian beneficiaries as a condition of attaining statehood and entry into the Union; and

WHEREAS, this solemn promise was enshrined in the Hawaii State Constitution as a demonstration of the State’s commitment to live up to the trust duties imposed on it by this compact; and

WHEREAS, in 1978, the State ratified a constitutional amendment that required the State to provide the Department of Hawaiian Home Lands sufficient sums to pay for all of its operations, including:

(1) Providing homesteads to every eligible beneficiary who applies in a timely manner;

(2) Funding farm, ranch and aquacultural assistance programs to make homesteaders successful on their homesteads;

(3) Assisting homesteaders in community development programs under the Native Hawaiian Rehabilitation Fund; and

(4) Funding the administrative and operating budget of the Department of Hawaiian Home Lands; and

WHEREAS, despite this mandate, for the next thirty years, the State never funded the Department of Hawaiian Home Lands adequately despite the 1978 constitutional amendment that it provide the Department of Hawaiian Home Lands with sufficient sums to pay for all the items specified above; and

WHEREAS, as of June 2008, the Department of Hawaiian Home Lands admits that nearly 1,731 persons on the waiting list have waited for over thirty years for a homestead; and

WHEREAS, ignoring the mandate of article XII, section 1, the Lingle Administration eliminated State General Fund appropriations beginning in fiscal year 2009-2010 for the first time since fiscal year 1989-1990; and

WHEREAS, the Hawaiian Homes Commission has not filed any lawsuit to enforce the constitutional requirement, despite the eroding general fund appropriations and the increasing homestead demand during that same period; and

WHEREAS, the Hawaiian Homes Commission, rather than taking all reasonable steps required of a reasonable trustee to enforce the provisions in article XII, section 1 to secure sufficient sums from the Legislature, as mandated in article XII, section 1, instead has embarked on a formal policy to general lease selected tracts of trust lands to private developers to raise revenues it is not requesting nor receiving from the Legislature; and

WHEREAS, the Department of Hawaiian Home Lands has established that its mission is in part "to manage the Hawaiian Home Lands trust effectively and to develop and deliver lands to native Hawaiians" and to "partner with others towards developing self-sufficient and healthy communities"; and

WHEREAS, the Department of Hawaiian Home Lands has not quantified the level of funding that would be sufficient to meet the constitutional mandate to fund the Department of Hawaiian Home Lands in order for it to meet its mission; and

WHEREAS, the Hawaiian Homes Commission and the Department of Hawaiian Home Lands has failed to define what is self-sufficiency in terms of the revenue stream that is adequate to perform all of its duties as contemplated under article XII, section 1, which would require it to:

(1) Provide homesteads to every eligible beneficiary who applies within a reasonable time;

(2) In a timely manner fund farm, ranch and aquacultural assistance programs to make homesteaders successful on their homesteads;

(3) Assist homesteaders in community development programs under the Native Hawaiian Rehabilitation Fund; and

(4) Fund the administrative and operating budget of the Department of Hawaiian Home Lands; and

WHEREAS, the Department of Hawaiian Home Lands Chair has publicly stated that the Department of Hawaiian Home Lands needs $100 million per year to meet it homesteading needs, yet arbitrarily sought to replace the $30 million per year being paid as the settlement reached in Act 14 as a means of achieving some unarticulated standard for achieving program self-sufficiency; and

WHEREAS, prior to her election in 2002, Governor Lingle pledged to eliminate the waiting list for Hawaiian homesteads during her term in office; and

WHEREAS, Governor Lingle then scaled that goal to producing 6,000 homesteads by the fifth year of her administration, by the end of 2008; and

WHEREAS, despite all the funding utilized between 2002 and 2010 to develop homestead lots and housing under Act 14, the Department of Hawaiian Home Lands waiting list grew each year during the Lingle Administration; and

WHEREAS, the Department of Hawaiian Home Lands has received over $450 million since 1995 under Act 14; and

WHEREAS, with that amount of funding and incorporating two years for planning and design, the Department of Hawaiian Home Lands should have produced at least 4500 improved homestead lots within the past fifteen years if it utilized only the funding under Act 14 that was to compensate the Department of Hawaiian Home Lands trust for breaches committed by the State against that trust prior to 1988; and

WHEREAS, in fact, the Department of Hawaiian Home Lands has reported awarded no more than 3219 new leases between 1995 and 2008; and

WHEREAS, during the Lingle/Kane administration, the Department of Hawaiian Home Lands awarded more than half of these homesteads in the form of undivided interests in larger unsubdivided homestead tracts, without installed infrastructure to support homestead use by those lessees; and

WHEREAS, despite the illusory nature of these undivided interests, that administration reported the award of undivided interests in homesteads without distinguishing them from regular homestead awards it did issue; and

WHEREAS, this failure to report on undivided interests deceptively inflates the actual numbers of homesteads awarded to beneficiaries during those years; and

WHEREAS, in 2003, with thousands waiting for suitable homestead lots, the Hawaiian Homes Commission leased two hundred acres of Department of Hawaiian Home Lands trust lands at Kealakehe in Kona to Jacoby Development Company for a time share development; and

WHEREAS, that land is within a two miles of major employment centers at Kailua-Kona; and

WHEREAS, those two hundred acres had the potential of serving at least 800 residential homesteaders immediately, but are now diverted from the trust for at least sixty years; and

WHEREAS, any land needed to compensate for the loss of the Kealakehe acreage is located miles away and would require millions more to develop to homestead standards than the Kealakehe acreage; and

WHEREAS, the Hawaiian Homes Commission and the Department of Hawaiian Home Lands has failed to analyze, and make officials findings and conclusions related to, the financial impact of diverting the Kealakehe lands for uses other than homesteading, and whether the leasing decision is in the best interest of those on growing waiting lists for homesteads on Hawaii island; and

WHEREAS, contrary to requirements under Hawaiian Homes Commission Act, Section 204(a)(2), the Hawaiian Homes Commission/Department of Hawaiian Home Lands conducted no analysis of the Kealakehe parcel was required to provide homesteads to applicants on the Hawaiian Homes Commission waiting lists who might have otherwise settled within a couple of miles of a major employment center sooner than being awarded a homestead elsewhere in the indefinite future; and

WHEREAS, the Hawaiian Homes Commission/Department of Hawaiian Home Lands is currently considering the creation of one hundred forty acres of commercial/industrial lots in Panaewa to supplement its illegal general lease income strategy on now unawarded trust lands potentially available for homestead leases in the future; and

WHEREAS, that land is adjacent to major employment centers in Hilo, Hawaii; and

WHEREAS, those one hundred and forty acres had the potential of serving at least hundreds of residential and/or agricultural homesteaders immediately, but are now diverted from the trust for potentially sixty years; and

WHEREAS, any land needed to compensate for the loss of the Panaewa acreage is located miles away and would require millions more to develop to homestead standards than the Panaewa acreage; and

WHEREAS, the Hawaiian Homes Commission/Department of Hawaiian Home Lands has failed to analyze, and make officials findings and conclusions related to, the financial impact of diverting the Panaewa lands for uses other than homesteading, and whether the leasing decision is in the best interest of those on growing waiting lists for homesteads on Hawaii island; and

WHEREAS, the number of applications for agricultural homesteads on Hawaii island was 6,658 as of June 30, 2009, the most for any category of homestead type on any island; and

WHEREAS, the number of applications for residential homesteads on the Island of Hawaii was 5,505 as of June 30, 2009; and

WHEREAS, the Hawaiian Homes Commission and Department of Hawaiian Home Lands conducted no analysis of the impact of general leasing the Panaewa parcel on applicants on the Department of Hawaiian Home Lands waiting lists who might have otherwise settled within a couple of miles of a major employment center sooner than being awarded a homestead elsewhere in the indefinite future; and

WHEREAS, on the Island of Hawaii, the Department of Hawaiian Home Lands summarily exempts its commercial developer lessees from any county requirements under a questionable Memo of Agreement it negotiated with the Kim administration; and

WHEREAS, this summary procedure denies beneficiaries as well as the general public any forum normally available to address land use issues typically available during the county land use permitting process; and

WHEREAS, in contrast, the Department of Hawaiian Home Lands insists that homestead lessees meet county building and subdivision requirements, often without offsetting financial assistance, causing hardships to many beneficiaries, like those at Maku‘u, who cannot get domestic water and building permits as a result of these requirements; and

WHEREAS, despite its emphasis in community-based land use planning, the Department of Hawaiian Home Lands initiated the one hundred forty acre industrial lot plan in the Panaewa Regional Land Use Plan that included the one hundred forty acre plan in the Panaewa Hawaiian Homes agricultural tract to be leased to the general public for commercial/industrial uses to generate income to the trust; and

WHEREAS, in an attempt to obtain community support for its general leasing plan, the Department of Hawaiian Home Lands attempted to induce the Keaukaha-Panaewa Farmers Association and the Panaewa Hawaiian Home Lands Community Association to endorse a Panaewa Regional Plan by offering them a lease at a reduced rent for one of the 17 lots being designated exclusively for income to support the operations of its community center and other activities related to community development in the Panaewa homestead tract; and

WHEREAS, nearly four decades ago, the Keaukaha-Panaewa Community Association was the pioneer homestead group that first judicially challenged the actions of the State to improperly divert homestead lands for projects and uses that benefit the general public, at the expense of native Hawaiian beneficiaries; and

WHEREAS, the Keaukaha-Panaewa Community Association was successful in stopping the attempt to make use of homestead lands without compensation to the trust in a legally famous case utilized today as the judicial precedent that allows beneficiaries to enforce provisions of the trust so that its assets are not diverted for other unspecified uses; now, therefore,

BE IT RESOLVED by the Senate of the Twenty-sixth Legislature of the State of Hawaii, Regular Session of 2011, that it:

(1) Requests that the Department of Hawaiian Home Lands provide data on the following statistics for the period 2000 through 2010:

(A) Number of homestead awards reported to the Legislature (if there is a discrepancy with the appropriate annual report, an explanation shall be provided), and a breakdown for each year in each of three categories of homesteads – residential, pastoral, agricultural, and aquacultural:

(B) Number of vacant improved lot awards;

(D) Number of homestead awards built under the self-help home-building strategy;

(E) Number of homestead awards under the undivided interest program; and

(F) Number of applicants offered homestead awards for each category; and

(2) Funds expended each year to improve lots with infrastructure; and

(3) Type of funding, general, special, trust, federal, broken down by homestead type, including:

(A) Infrastructural costs to provide utilities; and

(B) Homes built on each type of homestead under the following strategies: turn key, self-help, and owner-builder; and

BE IT FURTHER RESOLVED that the data requested in this measure be submitted to the Legislature, no later than twenty days prior to the Regular Session of 2012; and

BE IT FURTHER RESOLVED that a certified copy of this Resolution be transmitted to the Chairperson of the Hawaiian Homes Commission.

	OFFERED BY:	_____________________________

Report Title:

Department of Hawaiian Home Lands; Homestead Awards

THE SENATE	S.R. NO.	112
TWENTY-SIXTH LEGISLATURE, 2011
STATE OF HAWAII