Ka Wai Ola - Office of Hawaiian Affairs, Volume 34, Number 5, 1 May 2017 — The Native Rights cases, NHLC is often a Private Attorney General [ARTICLE]

The Native Rights cases, NHLC is often a Private Attorney General

Submitted by the Native Hawaiian Legal Corporation When county and state enforcement agencies, including the attorney general and the Office of the Corporation Counsel, fail to carry out their trust duties to protect the public's interest in puhlie trust resources or to enforce the law and the State Constitution, the people and precious resources of Hawai'i are unreasonably and unnecessarily placed in harm's way. When such circumstances present themselves, the public's last and

only line of defense is representation of the puhlie interest by private attorneys acting pro bono puhlieo. (See, In Re Water Use PermitApplications, 96 Haw. 27, 30, 25 P.3d 802, 805 ([Haw. 2001]). On these occasions, the Native Hawaiian Legal Corporation is duty bound to step in to fill the void. Preservation of our historic resources is a very important duty that has been placed upon the state and its respective agencies. Hawai'i's historic preservation statute, whieh is set forth in Haw. Rev. Stat. § 6E, provides: (b) Any person may maintain an action in the trial

court having jurisdiction where the alleged violation occurred or is likely to occur for restraining orders or injunctive relief against the State, its political subdivisions, or any person upon a showing of irreparable injury, for the protection of an historic property or a burial site and the puhlie trust therein from unauthorized or improper demolition, alteration, or transfer of the property or burial site. Since the early 1980s, the Native Hawaiian Legal Corporation (NHLC) has continuously and

consistently sought to protect the puhlie interest in historic properties and other puhlie trust resources throughout the state. In eaeh of these instances, NHLC has represented Hawaiians who have taken on the kuleana of ensuring that the laws whieh protect our precious resources are timely and effectively enforced. Haw. Rev. Stat. § 607-25(e)(l) provides another compelling reason of the need and justification for private attomey generals. This statute provides as follows: (e) In any civil action in this State where a private party sues for injunctive relief against another

private party who has been or is undertaking any development without obtaining all permits or approvals required by law from government agencies: ( 1 ) The court may award reasonable attorneys' fees and costs of the suit to the prevailing party. The "private attorney general" doctrine is premised upon the following three-prong test: "1) the strength or societal importance of the puhlie policy vindicated by the litigation, (2) the necessity for private enforcement and the magnitude of the resultant burden on the plaintiff, (3) the number of people standing to benefit from the decision." SEE NATIVE RIGHTS ON PAGE 25

NATIVE RIGHTS

Continued from page 19 The first prong is clearly satisfied when the matter involves the protection of constitutional rights and/or constitutionally protected historic sites and cultural properties deemed to be of profound significance to the puhlie. With respect to the second prong, when such constitutionally protected interests go unprotected due to the failure of government agencies responsible for enforcing the law and thereby protecting the public's interest, private individuals are left with no ehoiee but to step in. Linally, when the constitution and laws of this state are upheld, all of the people of Hawai'i benefit from a private citizen's legal efforts to protect constitutional provisions and constitutionally protected sites and practices. ■