Ka Wai Ola - Office of Hawaiian Affairs, Volume 10, Number 12, 1 Kekemapa 1993 — Native Hawaiian Legal Corporation report [ARTICLE+ILLUSTRATION]

Native Hawaiian Legal Corporation report

999-year lessees face fee phee hurdle

Irwin and Ellie Keliipuleole are among 53 homesteaders who hold 999-year leases from the state and find themselves ill-prepared to pay the fee price. The 999-year leases should not be confused with the 99year leases awarded by the state Department of Hawaiian Home Lands. "Wow, where did they eome up with that?" said Keliipuleole when the state quoted $365,000 as its first offer on their 1.06 acre parcel in Pālolo Valley. The state later reduced the sum to $300,000. While these homesteaders do not pay rent for their property, the terms of the lease prevent individuals from transferring, assigning or mortgaging any interest in the land, its improvements or crops. Consequently, lessees are unahle to use their leasehold as collateral for eonstruction or repairs. "In today's eeonomie climate, we cannot 'save' enough to rebuild, build or maintain our residences without the benefit

of a mortgage," Ellie Keliipuleole testified in April before a legislative committee. "To obtain a mortgage, homesteaders must purchase the fee interest," she added. Keliipuleole, who has spent 10 years researching the 999year leases, says the state Department of Land and Natural Resources (DLNR) is using the wrong criteria to ealculate the fee price. "There was no consideration that the family had improved their property, leveled the ground and built the buildings. Why weren't we recognized for our vested interest and what about the remaining years on the lease?" she said. Keliipuleole's family asked about purchasing the fee on at least five different occasions between 1953 and 1991. Arnold Lum, Native Hawaiian Legal Corp. (NHLC) attorney representing the eouple, agrees with Keliipuleole's last point. The fee price should be drastically lower given the

number of years left on the lease, he said. "We believe the law applieable to 999-year government leases requires DLNR to offer fee simple patents to lessees at a price that is based upon the value of the fee as encumbered by the 999-year lease." But since 1953 - when the Territory of Hawai'i began offering conversions - the fee price has been defined as fair market value with no consideration of the number of years left on the lease. In the case of the Keliipuleoles, the family has 917 years remaining on their lease, whieh was originally awarded to Irwin Keliipuleole's great great grandmother in 1911. The family lived on the property six years before that date in order to qualify for the homestead. Due to this problem and other obstacles faced by homesteaders, the state Legislature this session approved $40,000 to the Office of Hawaiian Affairs to

research and analyze the 999year leases. "The inability to use the land as collateral is the biggest day-to-day problem they have," said John Bay, the consultant who is conducting the study. According to Bay's research, 750 homestead leases were issued between 1895 and 1949. But in a report to the U.S. Congress in 1949, the number of homestead leases stood at 181. Today an estimated 53 homestead leases remain. Since 1953 approximately 67 homesteaders purchased the fee to their property. The leases were granted to Hawaiian and non-Hawaiian individuals, but the majority of current homesteaders appear to be Hawaiian, he said. NHLC has filed a lawsuit on behalf of Keliipuleole to have the court determine the meaning of the statute that governs the 999-year leases, Lum said. "We believe DLNR should be instructing their appraisers to value the fee as encumbered by

the lease through its remaining term." Instead DLNR is relying on a provision in a section of the law dealing with short-term residential leaseholds and applying it to appraisals for the 999-year leases, Lum said. That particular proviso, however, is absent from the section covering 999year leases. "Without the fee, homesteaders don't have the full bundle of rights the law entitles them to have," Lum said. Native Hawaiian Legal Corporation is a non-profit, puhlie interest law firm established in 1974 to assist native Hawaiians with their legal assertions to lanā, natural resources and related entitlements. (Editor's note: The views and opinions expressed in this eolumn do not necessarily represent the official position of the Office of Hawaiian Affairs Board of Trustees.)

A Native Hawaiian Ethnographic Survey for the Hawaii Geothermal Project Environmental Impact Statement Sponsored by the U.S. Department of Energy Oak Ridge National Laboratory (ORNL) is currently assisting the U.S. Department of Energy (DOE) in evaluating the potential environmental impacts of the 500 MW Hawaii Geothermal Project (HGP), a project proposed to Congress by the State of Hawaii in 1990. The State of Hawaii subsequently has decided not to pursue the HGP; however, the Federal Government is still under a Federal District Court Order to prepare an environmental impact statement for the previously proposed project. To assist DOE in complying with Federal and State legislation on the protection of cultural resources and Native Hawaiian customs and religion, ORNL has subcontracted a team of consultants located in Hawaii to conduct a survey of Native Hawaiian culture in two project areas: Puna, Hawaii and South Maui. This team, whieh uses the name CANDO (Cultural Action Network Developing Options), consists of Dr. Lueiano Minerbi, Dr. Jon Matsuoka, and Dr. Davianna Pomaika'i McGregor of the University of Hawaii, Manoa. These consultants are gathering information on Native Hawaiian traditions and resources in Puna and South Maui, and on potential impacts to those traditions and resources from the proposed HGP, during the months of November, December, and January. They will use this information to prepare a survey report that will be cited in the HGP environmental impact statement. Any Hawaiians or representatives of Hawaiian groups or organizations who would like to review and eommenī on a draft version of this survey should fill out the form below and mail it to Dr. Jon Matsuoka by January 10, 1994. Copies of the draft survey report will be made available in March, 1994. Yes, I want to review the draft version of the Native Hawaiian Ethnographic Sur\'ey: Name: Group or organization represented: Address: Please mail this completed form to Dr. Jon K. Matsuoka, University of Hawaii at Manoa, School of Social Work, 2500Campus Road, Honolulu, HI 96822. For more information about the survey, please contact Jon Matsuoka at (808) 956-6123 or Davianna McGregor at (808) 956-7068.