Ka Wai Ola - Office of Hawaiian Affairs, Volume 20, Number 7, 1 Iulai 2003 — Negotiations begin in Waikōloa ceded lands dispute [ARTICLE+ILLUSTRATION]

Negotiations begin in Waikōloa ceded lands dispute

By Sterling Kini Wong If the Board of Land and Natural Resources (DLNR) and the owners of the land under a West Hawai'i island resort are unahle to reach an agreement to resolve the 17-year dispute over the resort's utilization of ceded lands, the BLNR will prepare for eviction. This decision eame as part of BLNR s June 13 unanimous approval of a three-per-son appraisal process. The purpose of the appraisal process is to arrive at an agreed upon value of the ceded lands being utilized by the Hilton Waikōloa Village Resort to determine a land exchange or a lease. Alan Murakami, litigation director of the Native Hawaiian Legal Corp., said that if an agreement cannot be made the BLNR should follow through with an eviction. "If these were Hawaiians illegally using the land the SWAT team would have been on them

in a heartbeat," Murakami said. Jerry Rothstein of Puhlie Access Shoreline Hawai'i (PASH) said that the community's efforts in events such as the June 7 "Lei Day," at the Hilton Waikōloa successfully demonstrated

the community's desire to see a fair resolution of the longstanding dispute. More than 100 people participated in "Lei Day," in whieh community members held hands to outline the boundaries of the 1.8 acres of ceded lands to pressure the BLNR to reconsider a land swap as a form of compensation for the illegal use of the land. Rothstein said this is the first time the BLNR has given a land lease equal consideration to a land exchange. "There is a bright light resulting from all the things we've done," Rothstein said. "We are making progress." In October, the BLNR approved, in concept, a land exchange for the filled land, a perpetual, non-exclusive, easement for the submerged lands and the payment of back rent for the filled lands from 1986 in compensation for the resort's utilization of the land. See WAIKŌLOA on page 15

Community members participating in "Lei Day" at Waikōloa form human ehain outlining the boundaries of the ceded lands occupied rent-free by the resort.

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WAIKŌLOA from page 9 An independent appraisal that the state had commissioned, completed in February, valued the perpetual rent of the ceded lands at $192,000 a year and set back rent at $2 million. The Hilton Waikōloa leases the lands it occupies, whieh includes the disputed ceded lands, from Lanpar/HTL Associates. Hilton Regional Director of Puhlie Relations Karen Winpenny called the rent dispute an "issue between Lanpar and BLNR, and we wish to see it resolved as expeditiously as possible. In February, Lanpar rejected a $2.7 million independent appraisal of the ceded lands, claiming that they were standing firm to their original position of accepting an earlier valuation of the lands at $403,626. In 1998 and 2000, the property had been appraised by the Department of Land and Natural Resources, not by an independent appraiser. The three-person appraisal process, whieh is non-binding, requires Lanpar to select an appraiser. If Lanpar's appraisal differs from the state's independent appraisal, a third appraisal will be completed by an appraiser either agreed upon by Lanpar and the BLNR chair or one that is appointed by a Circuit Court. If at least two of the three apprais-

ers cannot agree on a value of the land, the appraisal process will end. At that point, the June 13 decision directed DLNR staff to proceed with "an eviction action" of the resort occupant or to establish "accepted values for a land exchange or lease." The DLNR had, in fact, threatened to evict the resort in Sept. 2000 when settlement negotiations with Lanpar stalled. The dispute began in 1986 when developer Chris Hemmeter filled in submerged lands and several anehialine ponds at Waiulua Bay while building the 62-acre resort. In response to the development Native Hawaiian fisherman Mervin Nāpe'ahi and the Native Hawaiian Legal Corp. filed a complaint in U.S. District Court stating that the state breached its fiduciary responsibilities by not protecting puhlie lands. The state's appraisal was completed in accordance with the 1997 decision of federal judge David Ezra in the Nāpe'ahi case ordering the state to seek fair compensation for the improper development of ceded lands. The 1.8-acre property includes the Waters Edge Ballroom, one of the hotel's seven restaurants and sections of the boat and tram systems. n