In this issue of Ke Ala Pono:
- Hawai'i Supreme Court Victories
- Remembering Delbert Wakinekona
- 'O'oma Land Preserved
- Appeal Win Clarifies AP Legal Burden
- New Additions to the NHLC 'Ohana
- Miloli'i Case Flashback
Since our last newsletter, Native Hawaiian Legal Corporation and our clients have celebrated a few victories at the Hawai‘i Supreme Court. Here are highlights from these case victories:
Hall v. DLNR
A year after the Intermediate Court of Appeals concluded that Kawaiaha‘o Church should have undertaken an archaeological survey before starting construction—and disinterring burials—the Hawai‘i Supreme Court agreed. The appeals court had concluded that the State Historic Preservation Division violated its own historic preservation rules.
Kilakila ‘O Haleakalā v. BLNR
In December 2010, the Board of Land and Natural Resources voted to grant a permit to build a 142 foot tall building at the summit of Haleakalā—without hearing evidence from opponents of the project. Native Hawaiian Legal Corporation, representing Kilakila ‘O Haleakalā, appealed over the denial of the request for a contested case hearing by Kilakila ‘O Haleakalā. Three years later, the Hawai‘i Supreme Court made it clear that the requested contested case hearing should have been held before the Board voted on the permit. The decision should put to rest a recent practice of the Board to vote first and then hear evidence afterwards.
Blake v. County of Kaua‘i Planning Comm’n
When Ted Kawahinehelelani Blake sued to protect historic sites in Kōloa on Kaua‘i, eighteen historic sites had already been destroyed—and portions of the walls of the Hapa Trail damaged. Nevertheless, the circuit court ruled that he had sued too soon. NHLC appealed. In December 2013, the Hawai‘i Supreme Court reversed the circuit court’s decision, ruling that it could not duck the issues Blake presented. •
1944 - 2014
On January 9, 2014, one of our beloved clients, Delbert Ka‘ahanui Wakinekona, passed away. He was 69 years old.
Delbert grew up in Mayor Wright Housing Project and in Wai‘anae, Waimānalo, and Hawai‘i island. In 1971 he was sentenced to life in prison without the possibility of parole for participating in a robbery in which a man was killed, even though he did not kill the man. While at the O‘ahu Community Correctional Center, Delbert became a vocal and highly visible advocate for prison reform and was promptly labeled as a troublemaker and shipped off to Folsom Prison in California under an interstate compact. Delbert challenged this transfer saying it amounted to “banishment” and took his case all the way to the United States Supreme Court. He lost in a 6-3 decision and spent the rest of the 20 years at Folsom. He was briefly returned to Hawai‘i in 1997 before being sent to the Corrections Corporation of America (CCA) prisons in the Arizona desert.
While in prison Delbert devoted his time to helping younger inmates and became a respected kupuna who cherished his Hawaiian heritage and worked to quell violence, urging younger men to “pick up a book instead of a dumbbell” and “flex your brain not your brawn.”
In 2011, Delbert was diagnosed with a terminal illness, but prison officials refused to grant him compassionate release. One of his long-time attorneys, Bob Merce, who is also a NHLC board member, approached NHLC for help. We agreed and succeeded in getting Delbert a hearing before the Hawai‘i Paroling Authority. On October 28, 2011, the Authority voted unanimously to grant Delbert compassionate release and later that day he walked out of Hālawa Correctional Center as a free man after 41 years in prison. During his 27 months of freedom Delbert was able to reconcile with his family, marry his childhood sweetheart, and walk on the land and beaches he loved.
Delbert’s lifelong dream was to create a pu‘uhonua, or place of refuge, where former inmates, the sick, dying, and those in trouble could find peace, love, and compassion. His wife, Lillian, recently said, “We, as the people of Hawai‘i, have a responsibility to mālama this dream for a better future for our families.”
Our heartfelt sympathy goes out to Delbert’s wife Lillian, his ‘ohana, and his many friends. We will miss him. •
A few years ago, the Native Hawaiian Legal Corporation filed an amicus brief on behalf of Michelle Tomas to support the Land Use Commission’s refusal to re-classify a 217 acre parcel at ‘O‘oma from conservation to urban. The court upheld the LUC decision. On December 31, 2013, the County of Hawai‘i bought the 217 acres for $6.2 million, preserving the land in perpetuity.
‘O‘oma is nestled between the Natural Energy Laboratory of Hawai‘i Authority (NELHA) and Kohanaiki on Hawai‘i island. It includes two burial sites, historic trails and a number of other significant archaeological features. The area’s cultural significance is highlighted by the fact that Kamehameha III was raised there.
Michael Tomas, our client’s husband, testified, “It’s the place we love. You know why, you turn around, you no can see the highway, no can see the cars. I guess not remember, but in your heart you feel you remember how our people wen’ live on these lands. They grow up on these lands. No take ‘em away.”
Our client, Michelle Tomas, testified, “This is what we see from the ocean. This is Hualālai. . . This is what we see when we go down to the ocean and we have fun with our kids, our families, our friends. That’s going to be blocked. The view is going to be blocked.”
In opposing the development proposed for the area, she said, “This is going to impact all of us. Yeah, say you guys, you know, reclassify, they build all their buildings, all that land is gone, gone all the caver use there, the living caves, the dwelling caves. It’s gonna be bulldozed. It’s gonna be mass ex. It’s gone.”
Today, it’s saved. •
Ka‘upulehu Land LLC v. Heirs of Pahukula
In early 2008, Ka‘upulehu Land LLC filed a quiet title action to claim ownership of an almost twelve acre parcel of land at Mahukona on Hawai‘i island. NHLC represents eighteen Native Hawaiian defendants who also claim to own part of the same land. In 2010, the circuit court granted summary judgment for Ka‘upulehu Land LLC, concluding that it owned the entire parcel through adverse possession. That court presumed, without documentary evidence, that a verbal mention of an unrecorded prior sale of the land during a probate of the true owner’s estate was enough to deprive our clients of any co-tenancy in the parcel. NHLC appealed.
In December 2013, the Hawai‘i Intermediate Court of Appeals (ICA) agreed with NHLC and vacated the circuit court’s summary judgment. The ICA ruled that: (1) If a co-tenancy exists, Ka‘upulehu Land had to show it acted in good faith toward its cotenants to win on its adverse possession claim; (2) Breaks in chains of record title are reason to suspect one or more cotenancies; and (3) Bad faith may be inferred from evidence that the co-tenant in possession should have known that a co-tenancy existed.
In this instance, the ICA ruled that it was premature to grant Ka‘upulehu Land LLC’s adverse possession claim. Instead, the ICA reaffirmed the high legal burden a quiet title plaintiff must meet to prevail on summary judgment, noting that the absence of documentary proof of a recorded conveyance by the true owner prior to his death during his probate, together with the recorded conveyances of interests in the same property after his death by his heirs, left the lower court with genuine issues of material fact regarding the existence of a co-tenancy:
“We cannot conclude that Ka‘upulehu Land has a right to judgment with such clarity as to leave no room for controversy, nor has Ka‘upulehu Land established affirmatively that Defendants cannot prevail under any circumstances.”
In January 2014, the ICA issued its’ final judgment vacating the 2010 circuit court decision and remanded the case back to the circuit court. Ka‘upulehu Land LLC applied for an appeal to the Hawai‘i Supreme Court and the case was accepted for review on March 27, 2014. •
New NHLC Board Member - Mike Hodson
In late 2013, NHLC proudly welcomed Mike Hodson to join our Board of Directors. Mike is a former Hawai‘i County police officer and a current DHHL lessee on Hawai‘i island. His family owns and operates Wow Farm in Waimea growing amazing vine-ripened tomatoes. Visit the Wow Farm website at www.wowfarms.com to learn more about the great work that Mike and his ‘ohana are doing! Mahalo Mike for guiding NHLC into 2014! •
New NHLC Staff Attorney - Summer Sylva
Summer Sylva joined the NHLC ‘ohana as a staff attorney earlier this year. She previously worked for NHLC as a summer law clerk in 2005, an experience that motivated her efforts to organize Cornell University’s first native water law and public policy symposium. Her published note chronicling Nā Moku Aupuni O Ko‘olau Hui’s legal struggle to access traditional sources of water to sustain taro cultivation and to perpetuate their traditional way of life was inspired by NHLC’s commitment to this important work. Before returning to NHLC in 2014, she worked at private law firms in both New York and Honolulu. •
Litigation Director Alan Murakami recently visited Miloli‘i, Hawai‘i’s last fishing village. In the early 1990’s, NHLC helped residents to fend off the impact the proposed Hawaiian Riviera Resort would have on traditional fishing grounds south of Miloli‘i. The Land Use Commission had approved redistricting to allow the resort to go forward, leaving the assessment of what would happen to the fisheries up to the developer to determine and ultimately mitigate. NHLC appealed to the Third Circuit Court. Judge Kimura reversed the LUC, based on the failure to determine in advance impacts on the fisheries before making any decision.
Visit our website, www.nhlchi.org, and Facebook page to see a video of former client and village kupuna, Willie Kaupiko, talk about the benefits that continue to today. See the newsletter pdf for a Miloli‘i sunset! •
In this issue of Ke Ala Pono:
- Honokaia 'Ohana Settles with DHHL in Water Lawsuit
- Queen Ka'ahumanu Highway Project Redesigned to Avoid Historic Sites
- Hale'iwa Beach Park Mauka Saved
- Judge Rules Against Dept. of Health in Birth Certificate Case
- 2013 Native Hawaiian Advocate Award Goes to Uncle Mac Poepoe
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