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Oral Argument Before the Hawaii Supreme Court – SCAP-22-0000268

SCAP-22-0000268, Thursday, December 14, 2023, 10 a.m.

PUALANI KANAKA‘OLE KANAHELE; EDWARD HALEALOHA AYAU; KELI‘I W. IONE, JR., Petitioners/Plaintiffs-Appellants, vs. STATE OF HAWAI‘I, DEPARTMENT OF TRANSPORTATION; JADE BUTAY, in his official capacity as Director of the Department of Transportation; DEPARTMENT OF LAND AND NATURAL RESOURCES; SUZANNE CASE, in her official capacity as the Director of the Department of Land and Natural Resources; DEPARTMENT OF HAWAIIAN HOME LANDS; HAWAIIAN HOMES COMMISSION; WILLIAM J. AILĀ, JR., in his official capacity as the Director of the Department of Hawaiian Home Lands and Chair of the Hawaiian Homes Commission; and PATRICIA A. KAHANOMOKU-TERUYA; RANDY K. AWO; PAULINE N. NAMU‘O, ZACHARY Z. HELM; DENNIS L. NEVES; MICHAEL L. KALEIKINI; RUSSELL K. KAUPU, and DAVID B. KA‘APU, in their official capacities as members of the Hawaiian Homes Commission, Respondents/Defendants-Appellees.

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The above-captioned case was set for oral argument on the merits.

The oral argument was held *remotely* and was livestreamed for public viewing via the Judiciary’s YouTube channel at and ‘Ōlelo TV 55.

Attorneys for Petitioners Pualani Kanaka‘ole Kanahele, Edward Halealoha Ayau, and Keli‘i W. Ione, Jr.:

Ashley K. Obrey, Daylin-Rose H. Heather, and Terina K. Fa‘agau of the Native Hawaiian Legal Corporation

Attorney for Respondents State of Hawai‘i, Department of Transportation, et al.:

Ewan C. Rayner, Deputy Solicitor General

NOTE: Order granting Application for Transfer, filed 12/20/22.

NOTE: Order assigning Chief Judge Peter T. Cahill of the Second Circuit Court and Judge Clarissa Y. Malinao of the First Circuit Court due to vacancies, filed 06/01/23.

NOTE: Order postponing the 8/10/23 oral argument due to the impact of Maui fires, filed 08/09/23.

NOTE: Order setting new oral argument date to 12/14/23 at 10:00 a.m., filed 09/13/23.

COURT: Recktenwald, C.J., McKenna and Eddins, JJ., and Circuit Judge Cahill and Circuit Judge Malinao, assigned by reason of vacancies

Brief Description:

Plaintiffs Pualani Kanakaʻole Kanahele, Edward Halealoha Ayau, and Kealiʻi “Skippy” Ioane, Jr. (collectively “Plaintiffs”) filed a complaint against the State of Hawaiʻi (“State”); the Department of Transportation (“DOT”); Jade Butay, in his official capacity as director of the DOT; the Department of Land and Natural Resources (“DLNR”); Suzanne Case, in her official capacity as the director of the DLNR; the Department of Hawaiian Home Lands (“DHHL”); the Hawaiian Homes Commission (“HHC”); William J. Ailā, Jr., in his official capacity as the director of the DHHL and chair of the HHC; and Patricia A. Kahanamoku-Teruya, Randy K. Awo, Pauline N. Namuʻo, Zachary Z. Helm, Dennis L. Neves, Michael L. Kaleikini, Russell K. Kaupu, and David B. Kaʻapu, in their official capacities as members of the HHC (collectively “Defendants”).

In the initial complaint filed in the Circuit Court of the First Circuit (“circuit court”), Plaintiffs alleged, inter alia, Defendants breached their trust duties by allowing the State to use the Mauna Kea Access Road (“MKAR”) without payment. Plaintiffs asked the circuit court to declare that the MKAR is not a state highway because the procedures of Hawaiʻi Revised Statutes (“HRS”) chapter 264 for making roads public were not followed.

In a motion to dismiss, Defendants argued Plaintiffs lacked standing to assert HRS chapter 264 claims. Defendants also asserted Plaintiffs’ claims were barred by Act 14, which purported to “resolve all controversies relating to the Hawaiian home lands trust which arose between August 21, 1959 and July 1, 1988.” 1995 Haw. Sess. Laws Act 14, § 2 at 698. To resolve all such controversies, Act 14 proposed “compensation for all remaining confirmed uncompensated public uses of Hawaiian home lands [and] the initiation of a land exchange to remedy uncompensated use of Hawaiian home lands for state roads claims and highways[.]” 1995 Haw. Sess. Laws Act 14, § 6 at 700. The circuit court denied Defendants’ motion.

Plaintiffs then filed a motion for partial summary judgment. The circuit court concluded that because the MKAR was constructed in 1974 and the Hawaiian home lands trust has never been compensated for public use of the MKAR, it was included in the Act 14 land exchange.

On appeal, Plaintiffs argue Act 14 does not bar their claims because it only addressed claims that arose before July 1, 1988, and the “taking” (the state highway designation) at issue occurred in 2018. Plaintiffs also assert the State and DOT had no authority to designate the MKAR a public highway because HRS chapter 264 procedures were not followed. Defendants ts respond that Act 14 precludes Plaintiffs’ claims and that Plaintiffs lack standing to assert Chapter 264 claims.