HB901 SD1.DOC

SECTION 1. Legislative findings and purpose. In 1978, the state constitution was amended to include article XII, sections 4, 5, and 6 that, among other things, established the office of Hawaiian affairs and its board of trustees. Sections 4 and 6 of article XII of the state constitution provide:

"PUBLIC TRUST

Section 4. The lands granted to the State of Hawaii by Section 5(b) of the Admission Act and pursuant to Article XVI, Section 7, of the State Constitution, excluding therefrom lands defined as "available lands" by Section 203 of the Hawaiian Homes Commission Act, 1920, as amended, shall be held by the State as a public trust for native Hawaiians and the general public.

POWERS OF BOARD OF TRUSTEES

Section 6. The board of trustees of the Office of Hawaiian Affairs shall exercise power as provided by law: to manage and administer the proceeds from the sale or other disposition of the lands, natural resources, minerals and income derived from whatever sources for native Hawaiians and Hawaiians, including all income and proceeds from that pro rata portion of the trust referred to in section 4 of this article for native Hawaiians; to formulate policy relating to affairs of native Hawaiians and Hawaiians; and to exercise control over real and personal property set aside by state, federal or private sources and transferred to the board for native Hawaiians and Hawaiians. The board shall have the power to exercise control over the Office of Hawaiian Affairs through its executive officer, the administrator of the Office of Hawaiian Affairs, who shall be appointed by the board."

By Act 273, Session Laws of Hawaii 1980, the legislature provided that "[t]wenty per cent of all funds derived from the public land trust, . . . shall be expended by the office of Hawaiian affairs . . . for the purposes of this chapter." This legislative directive has led to a series of lawsuits concerning the practical application of the twenty per cent apportionment the legislature established to implement article XII, sections 4 and 6, of the Constitution of the State of Hawaii.

In Trustees of the Office of Hawaiian Affairs v. Yamasaki, 69 Haw. 154, 737 P.2d 446 (1987), the Hawaii supreme court concluded that the issue of how the apportionment is formulated is a political question for the legislature to determine.

In response to the Yamasaki decision, the legislature enacted Act 304, Session Laws of Hawaii 1990, to clarify the extent and scope of the twenty per cent portion.

On September 12, 2001, the Hawaii supreme court ruled in Office of Hawaiian Affairs v. State of Hawaii, 96 Haw. 388, 31 P.3d 901 (2001), that Act 304 was effectively repealed by its own terms, so that once again, it was necessary for the legislature to specify the apportionment to be managed and administered by the office of Hawaiian affairs.

In its decision, the Hawaii supreme court affirmed Yamasaki, observing:

"[T]he State's obligation to native Hawaiians is firmly established in our constitution. How the State satisfies that constitutional obligation requires policy decisions that are primarily within the authority and expertise of the legislative branch. As such, it is incumbent upon the legislature to enact legislation that gives effect to the right of native Hawaiians to benefit from the ceded lands trust. See Haw. Const. art. XVI, §7 . . . [W]e trust that the legislature will re-examine the State's constitutional obligation to native Hawaiians and the purpose of HRS § 10-13.5 and enact legislation that most effectively and responsibly meets those obligations."

Office of Hawaiian Affairs v. State of Hawaii, 96 Haw. at 401, 31 P.3d at 914 (citations omitted).

The legislature recognizes the prior negotiations between the office of Hawaiian affairs and the prior governors and present governor toward meeting the State's obligation to native Hawaiians as set forth in our constitution. The legislature finds that the issue has evolved into two principal aspects, one regarding a resolution of the past obligations (i.e., from November 7, 1978 to present), and the other regarding a resolution of the future obligations (i.e. from present to the final reconciliation of the claims of the native Hawaiian people).

This legislature finds that the appropriate approach to a resolution of these issues is to either:

(1) Provide the framework for the State to negotiate a "global settlement" which shall include the past and future obligations of the State to the native Hawaiian people; or

(2) Make progress toward meeting a part of the State's past obligations to native Hawaiians by addressing the additional amount of income and proceeds that the office of Hawaiian affairs is to receive from the public trust pursuant to article XII, sections 4 and 6 of the Hawaii Constitution, for the period from November 7, 1978 to July 1, 2008.

Part I of this Act is this legislature's attempt to reach a "global settlement" of the past and future obligations of the State to the native Hawaiian people. The legislature finds that the proposal previously made by Governor Ben Cayetano on March 31, 1999, is a sensible and appropriate proposal for a "global settlement" and is re-offered to the office of Hawaiian affairs.

Part II of this Act sets forth the legislature's approach to alternatively address the issue regarding past obligations only, the legislature finds that the dollar value of $200,000,000 represents the amount agreed to between the office of Hawaiian affairs and the present governor regarding the resources that should be provided to the office of Hawaiian affairs for the period between November 7, 1978, and July 1, 2008. This Act also authorizes the office of Hawaiian affairs to elect to accept either (i) a $200,000,000 monetary payment, subject to payment terms and conditions set forth herein, (ii) conveyance of certain public lands up to but not more than $200,000,000 in value, or (iii) a combination of monetary payment and conveyance of land not to exceed $200,000,000 in value. It is also understood that the legislature's attempt to address the issue regarding past obligations in this Act is an expression of legislative policy and not a settlement or a contract. This Act is a legislative act without distinction from any other legislative act. As it is neither a settlement nor a contract, it can give rise to no lawsuits or claims to enforce it, nor to any claim in the future that any future legislation is barred in any way, or leads to liability in any way in the event this Act conflicts with a settlement, settlement agreement, or contract.

Part I

SECTION 2. (a) As a full and complete settlement of all of the claims of the native Hawaiian people against the State pursuant to article XII, sections 4 and 6, of the Constitution of the State of Hawaii, the legislature authorizes and instructs the governor to offer on behalf of the State to the office of Hawaiian affairs a "global settlement" as set forth in subsection (b). The office of Hawaiian affairs shall either accept or reject the "global settlement" proposal contained in subsection (b) on or before January 1, 2010, by written notice to the governor, the president of the senate, and speaker of the house of representatives. If the office of Hawaiian affairs fails to notify the State by January 1, 2010, the "global settlement" proposal shall be deemed to have been rejected.

(b) The "global settlement" proposal shall include the following:

(1) Payment by the State of $251,000,000 to the office of Hawaiian affairs pursuant to a payment plan agreed to by the office of Hawaiian affairs and the State and in accordance with sections 4 and 5;

(2) The suspension of the $15,100,000 annual payment to the office of Hawaiian affairs commencing from the effective "agreed to" date between the State and the office of Hawaiian affairs; and

(3) Conveyance of public lands from the State to the office of Hawaiian affairs equal to twenty per cent of the approximately 1.8 million acres of public trust lands presently inventoried by the State; provided that the twenty per cent shall be measured by acreage, unless otherwise mutually agreed to between the State and the office of Hawaiian affairs.

(c) The specific public lands that are to be conveyed by the State to the office of Hawaiian affairs pursuant to subsection (b)(3) shall be determined by negotiation between the governor and the office of Hawaiian affairs; provided, however, the negotiations shall be done with reasonable diligence, in good faith, and shall be completed on or before January 1, 2015, unless mutually extended by the State and the office of Hawaiian affairs.

(d) Upon the execution of a settlement agreement under this part, the governor shall include in the governor's financial plan for the ensuing fiscal years, the payments to be made and the financial impact of any revenue lost due to the conveyance of any land to the office of Hawaiian affairs pursuant to the settlement agreement.

SECTION 3. The acceptance by the office of Hawaiian affairs of the "global settlement" set forth in section 2 shall be in full satisfaction and resolution of all controversies at law and in equity, known or unknown, now existing or hereafter arising, established or inchoate, arising out of or in any way related to any right the office of Hawaiian affairs or any other person or entity may have to income, proceeds, or any other tangible right, item, or benefit from the public land trust lands under sections 4 and 6 of article XII of the state constitution or any related statute or act; thus, upon the acceptance of the "global settlement," each and every claim or suit that is predicated in any way upon an act or omission that arises out of or is in any way related to any right the office of Hawaiian affairs or any other person or entity may have to the income, proceeds, or any other tangible right, item, or benefit from the public land trust lands under sections 4 and 6 of article XII of the state constitution or any related statute or act shall be forever barred and may not be brought by the office of Hawaiian affairs or by any other person or entity.

The passage of this Act shall have the effect of res judicata as to all persons, claims, and issues that arise and defenses that have been at issue, or that could have been, or could in the future be, at issue, whether brought against the State or its departments, agencies, officials, and employees, directly or indirectly, by subrogation, derivative or third party action, tender, federal action, or by any other means whatsoever arising out of or in any way related to any right the office of Hawaiian affairs or any other person or entity may have to the income, proceeds, or any other tangible right, item, or benefit from the public land trust lands under sections 4 and 6 of article XII of the state constitution or any related statute or act.

SECTION 4. The $251,000,000 monetary payment to the office of Hawaiian affairs, together with interest at the rate set forth in section 478-2, Hawaii Revised Statutes, shall be subject to the appropriation of funds by the legislature and the approval of a payment plan, which may include the funding of the $251,000,000 monetary payment through the issuance of general obligation bonds that is authorized pursuant to section 5. If the State chooses to pay the $251,000,000 to the office of Hawaiian affairs over a period of time, those payments shall be made with interest and in equal annual payments commencing from a date agreed to in good faith by the State and the office of Hawaiian affairs.

SECTION 5. The director of finance is authorized to issue general obligation bonds in the sum of $251,000,000 or so much thereof as may be necessary and the same sum or so much thereof as may be necessary for fiscal year 2009-2010 is appropriated in accordance to the good faith agreement by and between the State and the office of Hawaiian affairs for the purpose of making the payment described in section 4.

The sum appropriated shall be expended by the department of budget and finance for the purposes of this part.

SECTION 6. The real property conveyances made under section 2(b)(3) and the funds paid under part I of this Act, regardless of the means of financing, shall be deemed income and proceeds from the public land trust as if they had been paid out of the income and proceeds from the public land trust pursuant to article XII, section 4 and article XII, section 6 of the state constitution.

SECTION 7. Notwithstanding any other law to the contrary, the State and the state officials who may have participated in the preparation of the provisions or the enactment of this Act, including the office of Hawaiian affairs, each of the members of its board of trustees, and its staff, shall not be subject to suit because of their participation, except if an action is brought to enforce the provisions of this part, in which case the action shall be brought only against the State and any state official as necessary to enforce the provisions of this part.

Part II

SECTION 8. Part II of this Act shall take effect only upon the rejection by the office of Hawaiian affairs of its option to accept a "global settlement" of the past and future obligations of the State to the native Hawaiian people pursuant to article XII, sections 4 and 6 of the Hawaii constitution as provided for in part I.

SECTION 9. Upon the rejection of the "global settlement" described in part I of this Act, the office of Hawaiian affairs shall elect to receive from the State resources valued at $200,000,000. The $200,000,000 in resources shall be paid to the office of Hawaiian affairs either by:

(1) Monetary payments in the manner set forth in section 10;

(2) Conveyance of certain parcels of land with the existing improvements thereon in the manner set forth in section 11; or

(3) A combination of monetary payments and conveyance of land and improvements totaling not more than $200,000,000 in value.

SECTION 10. (a) By written notice to the governor, the president of the senate, and speaker of the house of representatives on or before January 1, 2010, the office of Hawaiian affairs may elect to receive from the State $200,000,000 in monetary payment and forego the conveyance of any of the parcels of land described in section 11. Any failure of the office of Hawaiian affairs to notify the governor, the president of the senate, and speaker of the house of representatives in a timely fashion shall be deemed a rejection by the office of Hawaiian affairs of its right to receive $200,000,000 in monetary payment as set forth in this section.

(b) The $200,000,000 monetary payment to the office of Hawaiian affairs, together with interest at the rate set forth in section 478-2, Hawaii Revised Statutes, shall be subject to the appropriation of funds by the legislature and the approval of a payment plan which may include the funding of the $200,000,000 monetary payment through the issuance of general obligation bonds that is authorized pursuant to subsection (c). If the State chooses to structure the $200,000,000 monetary payment to the office of Hawaiian affairs over a period of time, the structured payments shall be made with interest and in equal annual payments commencing from a date agreed to in good faith by the State and the office of Hawaiian affairs.

(c) The director of finance is authorized to issue general obligation bonds in the sum of $200,000,000 or so much thereof as may be necessary and the same sum or so much thereof as may be necessary is appropriated for fiscal year 2009-2010 in accordance to the good faith agreement by and between the State and the office of Hawaiian affairs for the purpose of making the payment described in this section.

The sum appropriated shall be expended by the department of budget and finance for the purposes of this part.

SECTION 11. (a) If the office of Hawaiian affairs rejects its right to accept the $200,000,000 monetary payment described in section 10, the State shall convey to the office of Hawaiian affairs, subject to the rights of the office of Hawaiian affairs set forth in section 13, including but not limited to the right to inspect and reject any or all of the properties described in this section, and also subject to the limitations set forth in section 14, the fee simple interest in the following parcels of land with the existing improvements thereon, including submerged land, accreted land, or any land makai of the shoreline:

(1) Kakaako Makai: Lots 2, 3, 4, 5, and 9 as identified on the final Kakaako park subdivision map dated October 15, 2007, and approved by the city and county of Honolulu department of planning and permitting on November 9, 2007; except TMK: 2-1-058:41 and 2-1-058:110;

(2) Kahana Valley and Beach Park: TMK: (1) 5-2-01:1, 5-2-02: all, and 5-2-5:1 and 21 as described in Act 5, Session Laws of Hawaii 1987 and TMK: (1) 5-2-05:3;

(3) La Mariana and Pier 60: TMK: (1) 1-2-23:52, (1) 1-2-23:67, (1) 1-2-23:30, and (1) 1-2-23:55;

(4) Accreted peninsula and land filled bordered by Kalihi stream and Moanalua stream: TMK: (1) 1-1-3:3;

(5) Heeia meadowlands: TMK: (1) 4-6-16:01 and (1) 4-6-16:02;

(6) Mauna Kea: Mauna Kea Scientific Reserve: TMK: 3-4-4-015: 9 and 12; Mauna Kea Ice Age Natural Area Reserve: a 143.5 acre square parcel around Puu Pohaku, located to the west of the summit area and a 3,750 acre triangular-shaped parcel extends from approximately 10,070 feet (3,069 meters) up to 13,230 feet (4,033 meters) at the upper tip of the parcel;

(7) State-owned fishponds statewide: as identified in the Hawaiian Fishponds: Fishpond Database, developed pursuant to a grant/cooperative agreement from the National Oceanic and Atmospheric Administration, Project No. R/AQ-60 (sponsored by the University of Hawaii Sea Grant College Program, SOEST, under Institutional Grant No. NA36RG0507 Year 31 from NOAA Office of Sea Grant, Department of Commerce);

(8) Waikiki Yacht Club: (1)-23037006;

(9) AAFES Property: (1)-21058006; and

(10) Kalaeloa Makai: (1)-9-1-31:1;

The lands described in this section shall be held in trust pursuant to article XII, sections 4, 5, and 6, of the Hawaii constitution, and shall be subject to all laws, including section 171-58, Hawaii Revised Statutes, except as otherwise provided in this Act.

Because these are conveyances in which the State and its agencies are the only parties, the tax imposed by section 247-1, Hawaii Revised Statutes, shall not apply.

The property conveyed shall be subject to all encumbrances, whether or not of record, rights of native tenants, leases, contracts, agreements, permits, easements, profits, licenses, rights-of-way, or other instruments applicable to any land conveyed by this section effective or ongoing on the effective date of this Act, which shall remain in full force and effect. The Mauna Kea parcels, as listed in subsection (a)(6), shall be subject to Decision and Order of the Circuit Court of the Third Circuit, Civil No. 04-1-397 (January 7, 2007); provided that upon the completion of the requisite action, the board of land and natural resources shall cease to manage the parcels transferred by this Act. These encumbrances may be set forth in the instruments conveying the property to the office of Hawaiian affairs or set forth in a license or similar agreement, a memorandum of which may be recorded concurrently with the instruments conveying the property to the office of Hawaiian affairs. Effective upon conveyance of the property to the office of Hawaiian affairs pursuant to this Act, every reference to the current titleholder or the head of the department or agency in each such instrument, if the title-holder is a department or an agency, shall be construed to be a reference to the office of Hawaiian affairs or its board of trustees.

After the conveyances of real property are made pursuant to this section, the real property shall be subject to all laws, except as otherwise provided in this Act. The office of Hawaiian affairs shall administer the real properties in accordance with its duties under the Hawaii constitution and as provided by law.

(b) The office of Hawaiian affairs shall cooperate with other state agencies to designate and grant such access rights and easements as may be reasonably necessary for the benefit and use of adjoining properties owned by the State. Each of the instruments creating such access rights or granting such easements shall provide that the office of Hawaiian affairs, or any successor owner of the servient property, shall have the right to reasonably relocate any such access areas or easements so granted. The cost of initially identifying such access areas or designating and granting any such easements shall not be the responsibility of the office of Hawaiian affairs. The cost of relocating any such access areas or easements shall be paid by the office of Hawaiian affairs or any such successor owner, as the case may be. Each of the instruments creating such access rights or granting such easements shall also provide that the office of Hawaiian affairs shall only be responsible for a reasonable share of the cost of maintaining any of those access areas and easement areas, as the case may be, and that the office, its tenants, licensees, concessionaires, successors, and assigns shall not be liable for injuries or damages arising from the use of the access areas or easement areas by other state agencies or their invitees.

(c) Notwithstanding subsection (b), the office of Hawaiian affairs shall not be required to approve any access rights or grant any access easements to other state agencies that would materially diminish the value of the servient property or that would materially interfere with the use of the servient property by the office of Hawaiian affairs or any lessee, tenant, licensee, concessionaire, or other lawful occupant of the property, unless otherwise provided by law.

(d) The conveyances made by this section shall not include any of the State's rights to minerals or surface or ground water. As directed by the attorney general, the appropriate boards, agencies, officers, and employees of the State shall:

(1) Execute instruments of conveyance as may be necessary and proper to the office of Hawaiian affairs, as grantee, to convey the interest and title of the State and its boards and commissions to these lands and improvements in fee simple; and

(2) Record the instruments in the land court or bureau of conveyances, as appropriate.

(e) This section shall not limit the power of the legislature to enact any laws.

(f) The office of Hawaiian affairs shall transfer management and control of all parcels, as described in subsection (a), to the sovereign native Hawaiian entity upon its recognition by the United States and the State. All terms, conditions, agreements, and laws affecting the parcels, as described in subsection (a), shall remain in effect until expressly terminated.

SECTION 12. The real property conveyances made under this part shall be deemed income and proceeds from the lands in the public trust referred to in article XII, sections 4 and 6, of the Hawaii constitution, as if they had been paid out of the income and proceeds from trust lands pursuant to article XII, sections 4 and 6, of the Hawaii constitution. With regard to any properties conveyed to the office of Hawaiian affairs under this part that are part of the public land trust referred to in article XII, sections 4 and 6, of the Hawaii constitution, nothing in this part shall remove those properties from that public land trust.

SECTION 13. (a) The State shall reasonably cooperate with and assist the office of Hawaiian affairs in its investigation and study of the properties. During regular business hours, the State shall make available to the office of Hawaiian affairs and its authorized representatives the State's files that contain any of the following regarding properties to be conveyed to the office pursuant to this Act:

(1) Copies of soil reports, site plans, engineering reports, archaeological and historical studies, plans, and surveys, including shoreline surveys;

(2) Zoning entitlement and other land use documents and records including, without limitation, all current governmental permits, approvals, and authorizations;

(3) Copies of notices from governmental agencies regarding any violations of laws or ordinances;

(4) Copies of all leases and all correspondence with any lessees under any of the leases;

(5) Copies of licenses and concession agreements and all correspondence with any of the parties to the licenses and concession agreements;

(6) Copies of any other agreements affecting or relating to any of the property, and correspondence with any of the parties to any other relevant agreements;

(7) Copies of any existing surveys, maps, and aerial photographs; and

(8) Copies of all plans and other documents relating to any improvements on any of the property.

(b) The State shall permit the office of Hawaiian affairs and its authorized representatives to enter upon and conduct reasonable physical inspections of the property to be conveyed to the office of Hawaiian affairs under this Act, including subsurface investigations under the property and inspections of the buildings and other improvements located upon the property; provided that all entries and inspections shall be conducted in a manner that reasonably minimizes interference with the use of the property by the occupants of the property.

(1) July 1, 2010; or

(2) Six months after the State has provided the office with access to all the documents and property described in subsections (a) and (b);

to conduct a due diligence investigation of the property to be conveyed to the office of Hawaiian affairs pursuant to this Act.

(d) The specific public lands that are to be conveyed by the State to the office of Hawaiian affairs pursuant to this part shall be determined by negotiation between the governor and the office of Hawaiian affairs; provided, however, the negotiations shall be done with reasonable diligence, in good faith, and shall be completed on or before January 1, 2015, unless mutually extended by the State and the office of Hawaiian affairs.

(e) The office of Hawaiian affairs may elect in its sole discretion to reject any or all of the properties to be conveyed to it pursuant to this Act by written notice to the State given by January 1, 2010, or six months after the State has provided the office of Hawaiian affairs with access to all the documents and property described in subsection (a), whichever is later.

(f) Upon receipt of written notice from the office of Hawaiian affairs as and by the date provided in subsection (e) that any or all of the property, including but not limited to any one or more lot or tax map key parcel, to be conveyed to the office of Hawaiian affairs is rejected, then the property identified by the office of Hawaiian affairs shall not be conveyed to the office of Hawaiian affairs pursuant to this Act.

(g) The State shall convey to the office of Hawaiian affairs any property that has not been rejected by the office of Hawaiian affairs as provided in subsection (e) by not later than thirty days after the date by which the office of Hawaiian affairs was required to notify the State of any rejection as provided in subsection (e).

(h) Upon the execution of a settlement agreement under this part, the governor shall include in the governor's financial plan for the ensuing fiscal years, the payments to be made and the financial impact of any revenue lost due to the conveyance of any land to the office of Hawaiian affairs pursuant to the settlement agreement.

SECTION 14. The combined value of the properties conveyed to the office of Hawaiian affairs pursuant to part II shall not exceed $200,000,000. The value of the properties shall be equal to the real property tax assessed value immediately before conveyance, adjusted by twenty per cent offsets payable to the office of Hawaiian affairs on all ceded lands disposed of by the State.

SECTION 15. To the extent that the combined value of the properties conveyed to the office of Hawaiian affairs does not exceed $200,000,000, the difference between the combined value and $200,000,000 shall be paid to the office of Hawaiian affairs, together with interest at the rate set forth in section 478-2, Hawaii Revised Statutes, in five equal annual payments commencing on January 1, 2011, and ending on January 1, 2015.

SECTION 16. The legislature finds that the public interest is best served by the legislature deferring temporarily a re-examination of what amount of income and proceeds from the lands in the public trust referred to in article XII, section 4, of the Hawaii constitution should be provided to the office of Hawaiian affairs annually beginning on July 1, 2008. In this light, the annual amount will, for the time being, continue to be set by Act 178, Session Laws of Hawaii 2006, which stated:

". . . [U]ntil further action is taken by the legislature for this purpose, the income and proceeds from the pro rata portion of the public land trust under XII, section 6, of the state constitution for expenditure by the office of Hawaiian affairs for the betterment of the conditions of native Hawaiians for each fiscal year beginning with fiscal year 2005-2006 shall be $15,100,000."

SECTION 17. Section 171-2, Hawaii Revised Statutes, as amended to read as follows:

"§171-2 Definition of public lands. "Public lands" means all lands or interest therein in the State classed as government or crown lands previous to August 15, 1895, or acquired or reserved by the government upon or subsequent to that date by purchase, exchange, escheat, or the exercise of the right of eminent domain, or in any other manner; including accreted lands not otherwise awarded, submerged lands, and lands beneath tidal waters which are suitable for reclamation, together with reclaimed lands which have been given the status of public lands under this chapter, except:

(1) Lands designated in section 203 of the Hawaiian Homes Commission Act, 1920, as amended;

(2) Lands set aside pursuant to law for the use of the United States;

(3) Lands being used for roads and streets;

(4) Lands to which the United States relinquished the absolute fee and ownership under section 91 of the Hawaiian Organic Act prior to the admission of Hawaii as a state of the United States unless subsequently placed under the control of the board of land and natural resources and given the status of public lands in accordance with the State Constitution, the Hawaiian Homes Commission Act, 1920, as amended, or other laws;

(5) Lands to which the University of Hawaii holds title;

(6) Lands to which the Hawaii housing finance and development corporation in its corporate capacity holds title;

(7) Lands to [~~which~~] that the Hawaii community development authority in its corporate capacity holds title;

(8) Lands to which the department of agriculture holds title by way of foreclosure, voluntary surrender, or otherwise, to recover moneys loaned or to recover debts otherwise owed the department under chapter 167;

(9) Lands [~~which~~] that are set aside by the governor to the Aloha Tower development corporation; lands leased to the Aloha Tower development corporation by any department or agency of the State; or lands to which the Aloha Tower development corporation holds title in its corporate capacity;

(10) Lands which are set aside by the governor to the agribusiness development corporation; lands leased to the agribusiness development corporation by any department or agency of the State; or lands to which the agribusiness development corporation in its corporate capacity holds title; [~~and~~]

(11) Lands to which the high technology development corporation in its corporate capacity holds title[.]; and

(12) Land conveyed to the office of Hawaiian affairs pursuant to Act , Session Laws of Hawaii 2009."

SECTION 18. Section 206E-32, Hawaii Revised Statutes, is amended to read as follows:

"§206E-32 District; established, boundaries. The Kakaako community development district is established. The district shall include that area bounded by King Street; Piikoi Street from its intersection with King Street to Ala Moana Boulevard; Ala Moana Boulevard, inclusive, from Piikoi Street to its intersection with the Ewa boundary of Ala Moana Park also identified as the Ewa boundary of tax map key 2-3-37:01; the Ewa boundary of tax map key 2-3-37:01 from its intersection with Ala Moana Boulevard to the shoreline; the shoreline from its intersection with the property line representing the Ewa boundary of property identified by tax map key 2-3-37:01 to the property line between Pier 2 and Pier 4; the property line between Pier 2 and Pier 4 from its intersection with the shoreline to Ala Moana Boulevard; Ala Moana Boulevard from its intersection with the property line between lands identified by Pier 2 and Pier 4 to Punchbowl Street; and Punchbowl Street to its intersection with King Street; provided that the following parcels at Pier 1 and Pier 2 shall be deleted from the Kakaako community development district boundaries and conveyed to the department of land and natural resources to be set aside for the department of transportation and the foreign-trade zone division of the department of business, economic development, and tourism, to ensure continued maritime and foreign commerce use: all of lot 3 and parcels 2, 3-A, A, and B of the Forrest Avenue subdivision, as shown on the map filed with the bureau of conveyances of the State of Hawaii as file plan 2335; and lots A-1 and A-2, as shown on map 2, filed in the office of the assistant registrar of the land court of the State of Hawaii with land court application 1328; and provided further that all existing easements affecting and appurtenant to the parcels to be deleted from the Kakaako community development district boundaries shall not be affected by this change.

The district shall also include that parcel of land identified by tax map key 2-1-14:16, situated mauka of Pier 6 and Pier 7 and makai of Nimitz Highway, being the site for the existing Hawaiian Electric power plant and related facilities.

Notwithstanding any other provision of this section or of this chapter, the Kakaako community development district shall not include any land conveyed in fee simple to the office of Hawaiian affairs pursuant to Act , Session Laws of Hawaii 2009; provided that this land shall not be subject to any of the provisions of this chapter."

Part III

SECTION 19. Section 10-13.3, Hawaii Revised Statutes, is repealed.

["~~[§10-13.3]~~ Interim revenue. Notwithstanding the definition of revenue contained in this chapter and the provisions of section 10-13.5, and notwithstanding any claimed invalidity of Act 304, Session Laws of Hawaii 1990, the income and proceeds from the pro rata portion of the public land trust under article XII, section 6 of the state constitution for expenditure by the office of Hawaiian affairs for the betterment of the conditions of native Hawaiians for each of fiscal year 1997-1998 and fiscal year 1998-1999 shall be $15,100,000."]

Part IV

SECTION 20. To the extent that the State has waived sovereign immunity for a suit, claim, cause of action, or right of action regarding the amount of income and proceeds the office of Hawaiian affairs is to receive from the public trust pursuant to article XII, sections 4 and 6, of the Hawaii Constitution, that waiver is withdrawn.

SECTION 21. In printing this Act, the revisor of statutes shall substitute in sections 171-2 and 206E-32, Hawaii Revised Statutes, of sections 18 and 19, the corresponding act number of this Act.

SECTION 22. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 23. This Act shall take effect upon approval.

HOUSE OF REPRESENTATIVES	H.B. NO.	901
TWENTY-FIFTH LEGISLATURE, 2009		H.D. 2
STATE OF HAWAII		S.D. 1