Ka Wai Ola - Office of Hawaiian Affairs, Volume 9, Number 5, 1 Mei 1992 — OHA defending its interests in kuleana quiet title actions [ARTICLE]

OHA defending its interests in kuleana quiet title actions

by Ann L. Moore Trustees have approved up to $23,000 to notify, answer and defend, in Circuit Court, kuleana lands that could escheat to the Office of Hawaiian Affairs under Hawai'i law. (HRS 560:2-105.5 and 669-2(e))

Hawai'i law requires that OHA be joined as a defendant in any quiet title action brought under HRS 699-(e) when the claimed land is kuleana and when the plaintiff has reason to believe that an owner died without a will and there was no "taker" under Article 11 of the Hawai'i Probate Code. Before voting, trustees heard background information and justification for the expenditure presented by Linda Kawaiono Delaney, officer for the OHA Division of Land and Natural Resources. Delaney said that OHA is not going to try to get part of any kuleana land where there are legitimate heirs. OHA will go after only the p>art of the land whieh would have escheated (been returned to) the state. For 135 years, she said, Hawai'i probate laws provided that kuleana lands without heirs reverted to the adjoining land owner. The state also

has an interest in the land and this interest is called escheat. Escheated lands are those that revert to the government when there are no legal heirs. In 1985 OHA successfully lobbied for a change in the law, to require that such lands revert to OHA rather than the state. The law was changed with a stipulation that OHA develop a management plan that would have to be approved by the state Department of Land and Natural Resources. The establishment of OHA's rights under that law was a step forward. However, a problem remained — tracking all the quiet title actions brought in the state of Hawai'i that involved escheat land.

The issue was addressed in 1991 when the law was again amended to require that OHA be named as a party in all "quiet title" actions involving kuleana lands. Now, OHA must be notified as a named party when a quiet title action is undetaken. Recently, OHA was named in the first such action and is about to be named in a second acbon. continued on page 16

Kuleana from page 1

Delaney said that to preserve the rights anticipated by these changes to the law, OHA needs legal counsel. As part of the contract with OHA, the law firm (Paul, Johnson, Park and Niles) will: • represent the office in the two current cases; • prepare a notice to be sent to rouqhly 200 law

firms and attorneys notifying them of the legal requirements under applicable Hawai'i law; • develop a process for identifying pending quiet title actions in whieh escheat interests may be involved and, as time and money allow, identify those actions; • develop a plan for interventions to protect OHA's rights;

• develop a litigation plan for quiet title actions; and • prepare a letter to the state DLNR, regarding the land management plan required for escheated kuleana lands. In the discussion with trustees on hiring eounsel, Delaney said that Native Hawaiian Legal Corporation is unable to assist OHA in these matters because NHLC already represents

defendants in quiet title cases where OHA's interests are potentially different from the interests of the NHLC clients. The law firm of Paul, Johnson, Park and Niles was recommended to trustees for its reputation for excellent work in this area of the law. The vote in favor was unanimous at the full board meeting held March 31 at the OHA offices.