Hawaiian Homes Commission Act

Editor's Note. - This Act is nowpart of the Hawaii Constitution and is subject to amendment or repeal asprescribed in Article XII of the Constitution.

Bracketed section headings have been insertedand are not official.

As to consent of Congress to amendmentsto this Act adopted between August 21, 1959, and June 30, 1985, by thisState, except for 1981 Haw. Sess. Laws, Act 112, see Pub. Law 99-557 (Oct.27, 1986).

As to the appropriation of funds to providemeans to remedy the State's past transfers, takings, or uses of the HawaiianHome Lands since August 21, 1959, see 1992 Haw. Sess. Laws, Act 316, asamended by 1993 Haw. Sess. Laws, Act 352.

ARTICLE 1. Definitions.

§ 1.

That this Act may be cited as the "HawaiianHomes Commission Act, 1920."

Editor's Note. - 1995 Haw. Sp.Sess. Laws, Act 14, § 5 provides: "All patents issued and affectingany lands covered by, or alleged to be covered by, the HHCA, from the inceptionof that Act to July 1, 1988, whether issued by the territory or the Stateof Hawaii, are hereby confirmed as issued, and no action on such patentsmay be maintained."

1995 Sp. Sess. Laws, Act 14, § 12provides: "To the extent still available, the limited waiver of sovereignimmunity is hereby withdrawn with respect to any claim, cause of actionor right of action against the State arising out of an act or omissioncommitted or omitted between August 21, 1959 and July 1, 1988, excludingindividual claims under chapter 674, Hawaii Revised Statutes, as firstpermitted by Act 395, Session Laws of Hawaii 1988, or under any other lawenacted in furtherance of the purposes of that Act. Any claim, cause ofaction or right of action permitted by Act 395, Session Laws of Hawaii1988, is forever barred except with regard to:

"(1) A cause of action accruing afterJune 30, 1988 as may be permitted by chapter 673, Hawaii Revised Statutes;or

"(2) An individual claim as may bepermitted by chapter 674, Hawaii Revised Statutes."

Cross References. - As to adoptionof the Hawaiian Homes Commission Act as the law of the State, see Haw.Const., Art. XII, § 1.

As to special land and development fund,see § 171-19.

As to petition of Hawaiian Home Commissionfor formation of irrigation project, see § 174-14.

For provision that Chapter 174C, the StateWater Code, shall not be construed to amend or modify rights under thisact, see 174C-101.

CASE NOTES

Constitutionality. - Plaintiffswho were native Hawaiians had no standing to challenge the constitutionalityof the Hawaiian Homes Commission Act, which was enacted to benefit nativeHawaiians, on the ground that the Act is unconstitutional because it confersbenefits based solely upon race, since they were not removed from HawaiiHomelands property because of their race, but were removed from the propertybecause they obtained possession of it pursuant to improperly issued lettersof special administration and therefore, the injury they assert was inno way related to the basis of their claim, that the Hawaiian Homes CommissionAct unconstitutionally deprived non-Hawaiians of equal protection of thelaws. Naliielua v. Hawaii, 795 F. Supp. 1009 (D. Haw. 1990), aff'd, 940F.2d 1535 (9th Cir. 1991).

The Hawaii Homes Commission Act inproviding land for native Hawaiians did not create a suspect classificationwhich offends the constitution and thus an action stating that suchact deprives persons of their equal protection rights under the fourteenthamendment by creating preferences solely based on race lacked merit. Naliieluav. Hawaii, 795 F. Supp. 1009 (D. Haw. 1990), aff'd, 940 F.2d 1535 (9thCir. 1991).

Purpose of act. - The purpose ofthe Hawaii Homes Commission Act was to rehabilitate native Hawaiians onlands given the status of Hawaiian home lands under § 204 of the act.In re Ainoa, 60 Haw. 487, 591 P.2d 607 (1979); Ahuna v. Department of HawaiianHome Lands, 64 Haw. 327, 640 P.2d 1161 (1982).

Standing. - Where plaintiffs pointedto no intervening case or statutory law which indicated a contrary result,the court would hold to its prior decision that plaintiffs lacked standingto challenge the constitutionality of the Hawaiian Homes Commission Acton equal protection grounds. Naliielua v. Hawaii, 795 F. Supp. 1015 (D.Haw.), aff'd, 940 F.2d 1535 (9th Cir. 1991).

Where plaintiff, a native Hawaiian, challengedthe constitutionality of the Hawaiian Homes Commission Act on the groundsof equal protection, he was clearly asserting the rights of third-parties,i.e., non-Hawaiians who might be injured by being denied access to thisproperty, and he, therefore, lacked standing to challenge the constitutionalityof the Act. Naliielua v. Hawaii, 795 F. Supp. 1009 (D. Haw. 1990), aff'd,940 F.2d 1535 (9th Cir. 1991).

Trust obligation. - Under the HawaiianHomes Commission Act, the federal government set aside certain public landsto be considered Hawaiian home lands to be utilized in the rehabilitationof native Hawaiians, thereby undertaking a trust obligation benefitingthe aboriginal people, and the State of Hawaii assumed this fiduciary obligationupon being admitted into the Union as a state. Ahuna v. Department of HawaiianHome Lands, 64 Haw. 327, 640 P.2d 1161 (1982).

While the management and disposition ofthe home lands was given over to the State of Hawaii with the incorporationof the Hawaiian Homes Commission Act into the state Constitution, the trustobligation is rooted in federal law, and power to enforce that obligationis contained in federal law. Keaukaha-Panaewa Community Ass'n v. HawaiianHomes Comm'n, 739 F.2d 1467 (9th Cir. 1984).

Under § 5(f) of the Admission Act,the United States conveyed the bulk of its Hawaiian land holdings to thenewly formed state, with the instruction that the lands and all propertysubsequently conveyed by the United States to the state be held by thestate as a public trust; the lands which had already been reserved fordisposition by the Hawaiian homes commission under the Hawaiian Homes CommissionAct of 1920 were included in the § 5(f) trust. Price v. Hawaii, 764F.2d 623 (9th Cir. 1985), cert. denied, 474 U.S. 1055, 106 S. Ct. 793,88 L. Ed. 2d 771, reh'g denied, 475 U.S. 1091, 106 S. Ct. 1482, 89 L. Ed.2d 736 (1986).

Program is governed by Hawaiian law.- The Hawaiian Homes Commission Act program and its rights and duties are,for all practical purposes, elements of Hawaiian law, and Commission Actclaims do not arise under federal law. Keaukaha-Panaewa Community Ass'nv. Hawaiian Homes Comm'n, 588 F.2d 1216 (9th Cir. 1978), cert. denied,444 U.S. 826, 100 S. Ct. 49, 62 L. Ed. 2d 33 (1979).

Eviction and due process. - Allegationof plaintiffs that they were deprived of due process when they were evictedby the Department of Hawaiian Home Lands from a home on the Hawaiian HomeLands under a writ of possession issued by a Hawaii state circuit courtrather than a Hawaii state district court as required by § 666-6,failed where court found that because of the procedures followed in thecircuit court the plaintiffs were provided with notice and an opportunityto be heard prior to the issuance of the writ, and thus plaintiffs receiveddue process. Naliielua v. Hawaii, 795 F. Supp. 1015 (D. Haw.), aff'd, 940F.2d 1535 (9th Cir. 1991).

OPINIONS OF ATTORNEY GENERAL

The Hawaiian Homes Commission Act isnow a state constitutional provision. Op. Att'y Gen. No. 81-4 (1981).

For discussion of mode for amendingthe Hawaiian Homes Commission Act, see Op. Att'y Gen. No. 61-21 (1961).

LEGAL PERIODICALS

Hawaii Bar Journal.
Article, A Case for Reparations for Native Hawaiians, 16 Haw. B.J. 13 (1981).

Article, The Demise of the Hawaiian Kingdom:A Psycho-Cultural Analysis and Moral Legacy (Something Lost, SomethingOwed), 18 Haw. B.J. 3 (1983).

University of Hawaii Law Review.
Article, The Constitutionality of the Office of Hawaiian Affairs, 7 U.Haw. L. Rev. 63 (1985).

Recent Developments in ConstitutionalLaw: Private Federal Causes of Action to Enforce the Trust of the HawaiianHomes Commission - Keaukaha-Panaewa Community Association v. Hawaiian HomesCommission, 739 F.2d 1467 (9th Cir. 1984), 7 U. Haw. L. Rev. 569 (1985).

§ 2.

That when used in this Act the term "HawaiianOrganic Act" means the Act entitled "An Act to provide a governmentfor the Territory of Hawaii," approved April 30, 1900, as amended.

ARTICLE [1A. Purpose].]

[§ 101. Purpose.][Subject to Congressional Approval.]]

(a) The Congress of the United Statesand the State of Hawaii declare that the policy of this Act is to enablenative Hawaiians to return to their lands in order to fully support self-sufficiencyfor native Hawaiians and the self-determination of native Hawaiians inthe administration of this Act, and the preservation of the values, traditions,and culture of native Hawaiians.

(b) The principal purposes of this Actinclude but are not limited to:

(1) Establishing a permanent land basefor the benefit and use of native Hawaiians, upon which they may live,farm, ranch, and otherwise engage in commercial or industrial or any otheractivities as authorized in this Act;

(2) Placing native Hawaiians on the landsset aside under this Act in a prompt and efficient manner and assuringlong-term tenancy to beneficiaries of this Act and their successors;

(3) Preventing alienation of the fee titleto the lands set aside under this Act so that these lands will always beheld in trust for continued use by native Hawaiians in perpetuity;

(4) Providing adequate amounts of waterand supporting infrastructure, so that homestead lands will always be usableand accessible; and

(5) Providing financial support and technicalassistance to native Hawaiian beneficiaries of this Act so that by pursuingstrategies to enhance economic self-sufficiency and promote community-baseddevelopment, the traditions, culture and quality of life of native Hawaiiansshall be forever self-sustaining.

(c) In recognition of the solemn trustcreated by this Act, and the historical government to government relationshipbetween the United States and Kingdom of Hawaii, the United States andthe State of Hawaii hereby acknowledge the trust established under thisAct and affirm their fiduciary duty to faithfully administer the provisionsof this Act on behalf of the native Hawaiian beneficiaries of the Act.

(d) Nothing in this Act shall be construedto:

(1) Affect the rights of the descendantsof the indigenous citizens of the Kingdom of Hawaii to seek redress ofany wrongful activities associated with the overthrow of the Kingdom ofHawaii; or

(2) Alter the obligations of the UnitedStates and the State of Hawaii to carry out their public trust responsibilitiesunder section 5 of the Admission Act to native Hawaiians and other descendantsof the indigenous citizens of the Kingdom of Hawaii.

[L 1990, c 349, § 1]

Editor's Note. - 1990 Haw. Sess.Laws, Act 349, which enacted this section, was permitted to become lawwithout the Governor's signature on July 11, 1990. Section 3 of the Actprovides: "This Act shall take effect upon its approval by the Governorand with the consent of the United States Congress." As of the publicationof this 1995 Supplement, consent of Congress apparently had not been obtained.

Effective date. - For the effectivedate of this section, see the Editor's note.

ARTICLE 2. Hawaiian Homes Commission.

§ 201. [Definitions.]

(a) That when used in this title:

(1) The term "commission" meansthe Hawaiian Homes Commission;

(2) The term "public land" hasthe same meaning as defined in paragraph

(3) of subdivision (a) of section 73 ofthe Hawaiian Organic Act; (3) The term "fund" means the Hawaiianhome loan fund;

(4) The term "State" means theState of Hawaii;

(5) The term "Hawaiian home lands"means all lands given the status of Hawaiian home lands under the provisionsof section 204 of this title;

(6) The term "tract" meansany tract of Hawaiian home lands leased, as authorized by section 207 ofthis title, or any portion of such tract;

(7) The term "native Hawaiian"means any descendant of not less than one-half part of the blood of theraces inhabiting the Hawaiian Islands previous to 1778;

(8) The term "irrigated pastoralland" means land not in the description of the agricultural land butwhich, through irrigation, is capable of carrying more livestock the yearthrough than first-class pastoral land.

(b) Any term defined or describedin section 347 or 351 of the Revised Laws of Hawaii of 1915, except a termdefined in subdivision (a) of this section, shall, whenever used in thistitle, have the same meaning as given by such definition or description.

[Am Jun. 8, 1954, c 321, § 2, 68Stat 263; am L 1963, c 207, § 5(a)]

CASE NOTES

Cited in Ahuna v. Department ofHawaiian Home Lands, 64 Haw. 327, 640 P.2d 1161 (1982); Kahalewai v. Rodrigues,4 Haw. App. 446, 667 P.2d 839 (1983); Hoohuli v. Ariyoshi, 631 F. Supp.1153 (D. Haw. 1986).

OPINIONS OF ATTORNEY GENERAL

A legally adopted child is not automaticallya "native Hawaiian" as defined in subsection (a)(7) and muststill establish himself by sufficient documentation as a "native Hawaiian"qualified to be a lessee under § 209(1). Op. Att'y Gen. No. 73-18(1973).

LEGAL PERIODICALS

University of Hawaii Law Review.
Courts and the Cultural Performance: Native Hawaiians' Uncertain Federaland State Rights to Sue, 16 U. Haw. L. Rev. 1 (1994).

§ 202. Department officers, staff, commission,members, compensation.

(a) There shall be a department of Hawaiianhome lands which shall be headed by an executive board to be known as theHawaiian homes commission. The members of the commission shall be nominatedand appointed in accordance with section 26-34, Hawaii Revised Statutes.The commission shall be composed of nine members, as follows: three shallbe residents of the city and county of Honolulu; two shall be residentsof the county of Hawaii one of whom shall be a resident of east Hawaiiand the other a resident of west Hawaii; two shall be residents of thecounty of Maui one of whom shall be a resident from the island of Molokai;one shall be a resident of the county of Kauai; and the ninth member shallbe the chairman of the Hawaiian Homes Commission. All members shall havebeen residents of the State at least three years prior to their appointmentand at least four of the members shall be descendants of not less thanone-fourth part of the blood of the races inhabiting the Hawaiian islandsprevious to 1778. The members of the commission shall serve without pay,but shall receive actual expenses incurred by them in the discharge oftheir duties as such members. The governor shall appoint the chairman ofthe commission from among the members thereof.

The commission may delegate to the chairmansuch duties, powers, and authority or so much thereof, as may be lawfulor proper for the performance of the functions vested in the commission.The chairman of the commission shall serve in a full-time capacity. Heshall, in such capacity, perform such duties, and exercise such powersand authority, or so much thereof, as may be delegated to him by the commissionas herein provided above.

(b) The provisionsof section 76-16, Hawaii Revised Statutes, shall apply to the positionsof first deputy and private secretary to the chairman of the commission.The department may hire temporary staff on a contractual basis not subjectto chapters 76, 77, and 78, Hawaii Revised Statutes, when the servicesto be performed will assist in carrying out the purposes of the Act. Thesepositions may be funded through appropriations for capital improvementprogram projects and by the administration account, operating fund, ornative Hawaiian rehabilitation fund. No contract shall be for a periodlonger than two years, but individuals hired under contract may be employedfor a maximum of six years; provided that the six-year limitation shallnot apply if the department, with the approval of the governor, determinesthat such contract individuals are needed to provide critical servicesfor the efficient functioning of the department. All other positions inthe department shall be subject to chapters 76 and 77, Hawaii Revised Statutes.

All vacancies and new positions whichare covered by chapters 76 and 77, Hawaii Revised Statutes, shall be filledin accordance with sections 76-23 and 76-31, Hawaii Revised Statutes, providedthat the provisions of these sections shall be applicable first to qualifiedpersons of Hawaiian extraction.

[Am Jul. 26, 1935, c 420, § 1, 49Stat 504; May 31, 1944, c 216, § 1, 58 Stat 260; Jul. 1, 1952, c 618,66 Stat 515; am L 1963, c 207, § 1; am imp L 1965, c 223, §§5, 8; am L 1977, c 174, § 1; am L 1983, c 147, § 2; am L 1984,c 199, § 2; am L 1985, c 295, § 1; am L 1986, c 249, § 1;am L 1989, c 265, § 2]

Editor's Note. - Section 5 of 1989Haw. Sess. Laws, Act 265, provides: "The provisions of the amendmentsmade by this Act to the Hawaiian Homes Commission Act, 1920, as amended,are declared to be severable, and if any section, sentence, clause, orphrase, or the application thereof to any person or circumstances is heldineffective because there is a requirement of having the consent of theUnited States to take effect, then that portion only shall take effectupon the granting of consent by the United States and effectiveness ofthe remainder of these amendments or the application thereof shall notbe affected."

The 1989 amendment, effective June8, 1989, in the third sentence of subsection (a), substituted "ninemembers" for "eight members" following "composed of", substituted "two shall be residents" for "one shallbe a resident" preceding "of the county of Hawaii" and inserted"one of whom shall be a resident of east Hawaii and the other a residentof west Hawaii;" and substituted "ninth member" for "eighthmember" near the end of the sentence.

Cross References. - As to departmentof Hawaiian home lands, see § 26-17.

CASE NOTES

Cited in Kahalewai v. Rodrigues,4 Haw. App. 446, 667 P.2d 839 (1983).

OPINIONS OF ATTORNEY GENERAL

Acts directing the governor to appointthe members of boards and appoint chairmen for the boards from amongthe members, authorizing the boards to delegate to the chairmen the boards'authority or so much thereof as may be lawful or proper, and requiringthe chairmen to serve full-time at substantial salaries do not violateHaw. Const., Art. V, § 6, authorizing boards to appoint and removeprincipal executive officers. Op. Att'y Gen. No. 64-18 (1964).

The employment preference provisionat the end of this section conflicts with the express language of TitleVII of the federal Civil Rights Act of 1964, in that the employment decisionis predicated upon the applicant's race, and as such, it is rendered unenforceableunder the supremacy clause, U.S. Const., Art. VI, cl. 2. Op. Att'y Gen.No. 81-4 (1981).

As to classification of employees ofHawaiian homes commission, see Op. Att'y Gen. No. 59-80 (1959).

LEGAL PERIODICALS

University of Hawaii Law Review.
Article, The Constitutionality of the Office of Hawaiian Affairs, 7 U.Haw. L. Rev. 63 (1985).

§ 203. Certain public lands designated"available lands."

All public lands of the descriptionand acreage, as follows, excluding (a) all lands within any forest reservation,(b) all cultivated sugar-cane lands, and (c) all public lands held undera certificate of occupation, homestead lease, right of purchase lease,or special homestead agreement, are hereby designated, and hereinafterreferred to, as "available lands":

(1) On the island of Hawaii: Kamaoa-Puueo(eleven thousand acres, more or less), in the district of Kau; Puukapu(twelve thousand acres, more or less), Kawaihae 1 (ten thousand acres,more or less), and Pauahi (seven hundred and fifty acres, more or less),in the district of South Kohala; Kamoku-Kapulena (five thousand acres,more or less), Waimanu (two hundred acres, more or less), Nienie (seventhousand three hundred and fifty acres, more or less), in the districtof Hamakua; fifty-three thousand acres to be selected by the departmentfrom the lands of Humuula Mauka, in the district of North Hilo; Panaewa,Waiakea (two thousand acres, more or less); Waiakea-kai, or Keaukaha (twothousand acres, more or less), and two thousand acres of agricultural landsto be selected by the department from the lands of Piihonua, in the districtof South Hilo; and two thousand acres to be selected by the departmentfrom the lands of Kaohe-Makuu, in the district of Puna; land at Keaukaha,Hawaii, more particularly described as follows:

PARCEL I

Now set aside as Keaukaha Beach Park byExecutive Order Numbered 421, and being a portion of the Government landat Waiakea, South Hilo, Hawaii.

Beginning at the southeast corner of thisparcel of land, on the north side of Kalanianaole Road, the coordinatesof said point of beginning referred to Government survey triangulationstation "Halai" being five thousand six hundred and eighty-oneand twelve one-hundredths feet north and seventeen thousand nine hundredand thirty-three and fifteen one-hundredths feet east, as shown on GovernmentSurvey Registered Map Numbered 2704, and running by true azimuths.

1. Sixty-one degrees fifty-eight minutesone thousand three hundred and fifty-one and seventy-three one-hundredthsfeet along the north side of Kalanianaole Road (fifty feet wide);

2. One hundred and fifty-one degrees fifty-eightminutes eight hundred and forty feet along United States military reservationfor river and harbor improvements (Executive Order Numbered 176);

Thence along the seashore at high-watermark, the direct azimuths and distances between points at seashore being:

3. Two hundred and eighty-two degreesno minutes four hundred and sixty-eight and fifty one-hundredths feet;

4. Three hundred and thirteen degreestwenty minutes four hundred and forty-one feet;

5. Two hundred and sixty degrees twentyminutes one hundred and forty feet;

6. Two hundred and forty-two degrees twentyminutes two hundred and fifty feet;

7. One hundred and eighty-eight degreesforty minutes sixty feet;

8. Two hundred and seventy-two degreestwenty minutes one hundred and seventy feet;

9. Two hundred and five degrees no minutessixty feet;

10. One hundred and ten degrees twentyminutes two hundred and twenty feet;

11. Ninety degrees fifty minutes eightyfeet;

12. One hundred and sixty-two degreesno minutes one hundred and seventy feet;

13. Two hundred and fifty degrees thirtyminutes four hundred and thirty feet;

14. Three hundred and thirty-one degreesfifty-eight minutes three hundred and eighty feet along parcel II of Governmentland to the point of beginning and containing an area of eleven and twentyone-hundredths acres, more or less.

PARCEL II

Being a portion of the Government landof Waiakea, South Hilo, Hawaii, and located on the north side of KalanianaoleRoad and adjoining parcel I, hereinbefore described.

Beginning at the south corner of thisparcel of land, on the north side of Kalanianaole Road, the coordinatesof said point of beginning referred to Government survey triangulationstation "Halai," being five thousand six hundred and eighty-oneand twelve one-hundredths feet north and seven thousand nine hundred andthirty-three and fifteen one-hundredths feet east and running by true azimuths:

1. One hundred and fifty-one degrees fifty-sixminutes three hundred and eighty feet along the east boundary of parcelI;

2. Two hundred and twenty-nine degreesforty-five minutes thirty seconds one hundred and ninety-one and one one-hundredthsfeet;

3. One hundred and ninety-eight degreesno minutes two hundred and thirty feet to a one-and-one-half inch pipeset in concrete;

4. Three hundred and seven degrees thirty-eightminutes five hundred and sixty-two and twenty-one one-hundredths feet toa one-and-one-half inch pipe set in concrete;

5. Twenty-eight degrees no minutes onehundred and twenty-one and thirty-seven one-hundredths feet to the northside of Kalanianaole Road;

6. Sixty-one degrees fifty-eight minutesfour hundred and eighty-three and twenty-two one-hundredths feet alongthe north side of Kalanianaole Road to the point of beginning and containingan area of five and twenty-six one-hundredths acres, more or less.

(2) On the island of Maui: Kahikinui (twenty-fivethousand acres, more or less) in the district of Kahikinui, and the publiclands (six thousand acres, more or less) in the district of Kula;

(3) On the island of Molokai: Palaau (eleventhousand four hundred acres, more or less), Kapaakea (two thousand acres,more or less), Kalamaula (six thousand acres, more or less), Hoolehua (threethousand five hundred acres, more or less), Kamiloloa I and II (three thousandsix hundred acres, more or less), and Makakupaia (two thousand two hundredacres, more or less) and Kalaupapa (five thousand acres, more or less);

(4) On the island of Oahu: Nanakuli (threethousand acres, more or less), and Lualualei (two thousand acres, moreor less), in the District of Waianae; and Waimanalo (four thousand acres,more or less), in the District of Koolaupoko, excepting therefrom the militaryreservation and the beach lands; and those certain portions of the landsof Auwaiolimu, Kewalo, and Kalawahine described by metes and bounds asfollows, to-wit:

(I) Portion of the Government land atAuwaiolimu, Punchbowl Hill, Honolulu, Oahu, described as follows:

Beginning at a pipe at the southeast cornerof this tract of land, on the boundary between the lands of Kewalo andAuwaiolimu, the coordinates of said point of beginning referred to GovernmentSurvey triangulation station "Punchbowl," being one thousandone hundred and thirty-five and nine-tenths feet north and two thousandfive hundred and fifty-seven and eight-tenths feet east as shown on GovernmentSurvey Registered Map Numbered 2692, and running by true azimuths:

1. One hundred and sixty-three degreesthirty-one minutes two hundred and thirty-eight and eight-tenths feet alongthe east side of Punchbowl-Makiki Road;

2. Ninety-four degrees eight minutes onehundred and twenty-four and nine-tenths feet across Tantalus Drive andalong the east side of Puowaina Drive;

3. One hundred and thirty-one degreesthirteen minutes two hundred and thirty-two and five-tenths feet alonga twenty-five foot roadway;

4. One hundred and thirty-nine degreesfifty-five minutes twenty and five-tenths feet along same;

5. One hundred and sixty-eight degreesseventeen minutes two hundred and fifty-seven and eight-tenths feet alongGovernment land (old quarry lot);

6. One hundred and fifty-six degrees thirtyminutes three hundred and thirty-three feet along same to a pipe;

7. Thence following the old Auwaiolimustone wall along L.C. Award Numbered 3145, to Laenui, grant 5147 (lot 8to C.W. Booth), L.C. Award Numbered 1375, to Kapule, and L.C. Award Numbered1355, to Kekuanoni, the direct azimuth and distance being two hundred andforty-nine degrees forty-one minutes one thousand three hundred and threeand five-tenths feet;

8. Three hundred and twenty-one degrees,twelve minutes, six hundred and ninety-three feet along the remainder ofthe land of Auwaiolimu;

9. Fifty-one degrees, twelve minutes,one thousand and four hundred feet along the land of Kewalo to the pointof beginning, containing an area of twenty-seven acres, excepting and reservingtherefrom Tantalus Drive and Auwaiolimu Street crossing this land.

(II) Portion of the land of Kewalo, PunchbowlHill, Honolulu, Oahu, being part of the lands set aside for the use ofthe Hawaii Experiment Station of the United States Department of Agricultureby proclamation of the Acting Governor of Hawaii, dated June 10, 1901,and described as follows:

Beginning at the northeast corner of thislot, at a place call "Puu Ea" on the boundary between the landsof Kewalo and Auwaiolimu, the coordinates of said point of beginning referredto Government survey triangulation station "Punchbowl," beingthree thousand two hundred and fifty-five and six-tenths feet north andfive thousand two hundred and forty-four and seven-tenths feet east, asshown on Government Survey Registered Map Numbered 2692 of the State ofHawaii, and running by true azimuths:

1. Three hundred and fifty-four degreesthirty minutes nine hundred and thirty feet along the remainder of theland of Kewalo, to the middle of the stream which divides the lands ofKewalo and Kalawahine;

2. Thence down the middle of said streamalong the land of Kalawahine, the direct azimuth and distance being forty-ninedegrees sixteen minutes one thousand five hundred and twelve and five-tenthsfeet;

3. One hundred and forty-one degrees twelveminutes eight hundred and sixty feet along the remainder of the land ofKewalo;

4. Two hundred and thirty-one degreestwelve minutes five hundred and fifty-two and six-tenths feet along theland of Auwaiolimu to "PUU IOLE";

5. Thence still along the said land ofAuwaiolimu following the top of the ridge to the point of beginning, thedirect azimuth and distance being two hundred and thirty-two degrees twenty-sixminutes one thousand four hundred and seventy feet and containing an areaof thirty acres; excepting and reserving therefrom Tantalus Drive crossingthis land;

(III) Portion of the land of Kalawahinemakai of Tantalus Drive consisting of twelve acres, more or less, saidparcel described more specifically in tax map key 2-4-34-8, which includescertain parcels adjoining the Ewa portion of Kalawahine Place currentlyoccupied by short-term land dispositions if the persons residing on thoseparcels meet the qualifications established by the Legislature of the Stateof Hawaii and elect to have the land under their homes transferred to thedepartment, and certain portions of the Ewa portion of the parcel, butexcluding the hillside side portions of the southeast parcel, with metesand bounds designated by the department and approved by the departmentof land and natural resources; provided that persons now residing on portionof the land described, be given first opportunity to lease the lands onwhich they now reside, for a term of 99 years, whether or not they be nativeHawaiians as defined in the Hawaiian Homes Commission Act of 1920, as amended.

(IV) Portion of the Hawaii ExperimentStation under the control of the United States Department of Agriculture,situated on the northeast side of Auwaiolimu Street.

KEWALO-UKA, HONOLULU, OAHU

Being a portion of the land of Kewalo-ukaconveyed by the Territory of Hawaii to the United States of America byproclamations of the Acting Governor of Hawaii, Henry S. Cooper, datedJune 10, 1901, and August 16, 1901, and a portion of the United StatesNavy Hospital reservation described in Presidential Executive Order Numbered1181, dated March 25, 1910.

Beginning at the west corner of this parcelof land, on the Auwaiolimu-Kewalo-uka boundary and on the northeast sideof Auwaiolimu Street, the coordinates of said point of beginning referredto Government survey triangulation station "Punchbowl," beingone thousand two hundred and thirty and fifty-eight one-hundredths feetnorth and two thousand six hundred and seventy-five and six one-hundredthsfeet east as shown on Government Survey Registered Map Numbered 2985 andrunning by azimuths measured clockwise from true south:

1. Two hundred and thirty-one degreestwelve minutes one thousand two hundred and forty-eight and twenty-sixone-hundredths feet along the land of Auwaiolimu;

2. Three hundred and twenty-one degreestwelve minutes eight hundred and sixty feet along Hawaiian home land asdescribed in Presidential Executive Order Numbered 5561;

3. Thence down along the middle of streamin all its turns and windings along the land of Kalawahine to the northcorner of Roosevelt High School lot, the direct azimuth and distance beingthirty-three degrees forty-eight minutes forty seconds one thousand onehundred and twelve and twenty one-hundredths feet; Thence still down alongthe middle of stream for the next seven courses along the Roosevelt HighSchool premises, the direct azimuth and distances between points in middleof said stream being:

4. Twenty-three degrees forty minutestwenty-eight and ninety one-hundredths feet;

5. Eight degrees no minutes one hundredand fifteen feet;

6. Three hundred and thirty-seven degreesfifty minutes forty-eight feet;

7. Two degrees thirty minutes sixty feet;

8. Forty-nine degrees forty minutes fifty-twofeet;

9. Forty-six degrees six minutes ninetyand seventy one-hundredths feet;

10. Ninety-two degrees forty-three minutesninety-five and sixty one-hundredths feet; thence

11. Eighty-three degrees thirty-eightminutes seventy-one and sixty-three one-hundredths feet along state landto the northeast side of Auwaiolimu Street;

12. Thence on a curve to the left witha radius of one thousand one hundred and seventy-six and twenty-eight one-hundredthsfeet along the northeast side of Auwaiolimu Street along land describedin Presidential Executive Order Numbered 1181, dated March 25, 1910, thedirect azimuth and distance being one hundred and seventy-two degrees twenty-nineminutes thirty-five seconds one hundred and sixty-four and thirty-nineone-hundredths feet;

13. Thence continuing on a curve to theleft with a radius of one thousand one hundred and seventy-six and twenty-eightone-hundredths feet along the northeast side of Auwaiolimu Street, thedirect azimuth and distance being one hundred and sixty degrees fifty minutesforty-eight seconds three hundred and twelve and seventy-five one-hundredthsfeet;

14. Two hundred and twenty-four degreesfifty-three minutes six hundred and seventy and sixty-five one-hundredthsfeet along the Quarry Reservation (State of Hawaii, owner);

15. One hundred and ten degrees six minutestwo hundred and thirty-nine and twenty one-hundredths feet along the same;

16. Ninety-two degrees five minutes twohundred and two and twenty one-hundredths feet along same;

17. Fifty-three degrees twenty minutesthree hundred and forty and thirty-four one-hundredths feet along same;

18. One hundred and forty-two degreesthirty minutes four hundred and twenty-four and sixty-eight one-hundredthsfeet along the northeast side of Auwaiolimu Street to the point of beginningand containing an area of twenty-seven and ninety one-hundredths acres;excepting and reserving therefrom that certain area included in TantalusDrive, crossing this land.

(V) Portion of Kewalo-uka Quarry Reservation.Situate on the northeast side of Auwaiolimu Street.

KEWALO-UKA, HONOLULU, OAHU

Being land reserved by the State of Hawaiiwithin the Hawaii Experiment Station under the control of the United StatesDepartment of Agriculture, as described in proclamations of the ActingGovernor of Hawaii, Henry E. Cooper, dated June 10, 1901.

Beginning at the northwest corner of thisparcel of land and on the northeast side of Auwaiolimu Street, the coordinatesof said point of beginning referred to Government survey triangulationstation "Punchbowl," being eight hundred and ninety-three andsixty-six one-hundredths feet north and two thousand nine hundred and thirty-threeand fifty-nine one-hundredths feet east as shown on Government Survey RegisteredMap Numbered 2985 and running by azimuths measured clockwise from truesouth:

1. Two hundred and thirty-three degreestwenty minutes three hundred and forty and thirty-four one-hundredths feetalong the Hawaii Experiment Station under the control of the United StatesDepartment of Agriculture;

2. Two hundred and seventy-two degreesfive minutes two hundred and two and twenty one-hundredths feet along same;

3. Two hundred and ninety degrees sixminutes two hundred and thirty-nine and twenty one-hundredths feet alongsame;

4. Forty-four degrees fifty-three minutessix hundred and seventy and sixty-five one-hundredths feet along same tothe northeast side of Auwaiolimu Street;

5. Thence on a curve to the left witha radius of one thousand one hundred and seventy-six and twenty-eight one-hundredthsfeet along the northeast side of Auwaiolimu Street, the direct azimuthand distance being one hundred and forty-seven degrees fifty-one minutesthirteen seconds two hundred and nineteen and fifty one-hundredths feet;

6. One hundred and forty-two degrees thirtyminutes one hundred and thirty-four and fifty-five one-hundredths feetalong the northeast side of Auwaiolimu Street;

7. Two hundred and thirty-two degreesthirty minutes twenty feet along same;

8. One hundred and forty-two degrees thirtyminutes seventy-one and fifty-seven one-hundredths feet along same to thepoint of beginning and containing an area of four and six hundred and forty-sixone-thousandths acres.

(VI) Being a portion of government landof Auwaiolimu, situated on the northeast side of Hawaiian home land ofAuwaiolimu and adjacent to the land of Kewalo-uka at Pauoa Valley, Honolulu,Oahu, State of Hawaii.

Beginning at a pipe in concrete at thesouth corner of this parcel of land, being also the east corner of Hawaiianhome land, the coordinates of said point of beginning referred to GovernmentSurvey Triangulation Station "Punchbowl," being two thousandtwelve and seventy-five one-hundredths feet south and three thousand sixhundred forty-seven and eight-seven one-hundredths feet east, and thencerunning by azimuths measured clockwise from true south:

1. One hundred and forty-one degrees twelveminutes six hundred and ninety-three feet along Hawaiian home land;

2. Thence along middle of stone wall alongL.C.Aw. 1356 to Kekuanoni, Grant 5147, Apana 1 to C.W.Booth, L.C.Aw. 1351to Kamakainau, L.C.Aw. 1602 to Kahawai, Grant 4197 to Keauloa, L.C.Aw.5235 to Kaapuiki and Grant 2587 to Haalelea;

3. Two hundred and ninety-five degreesthirty minutes three hundred and twenty feet along the remainder of governmentland of Auwaiolimu;

4. Twenty-four degrees sixteen minutesthirty seconds one thousand five hundred seventy-nine and thirty-six one-hundredthsfeet along the remainder of government land of Auwaiolimu;

5. Thence along middle of ridge alongthe land of Kewalo-uka to a point called "Puu Iole" (pipe inconcrete monument), the direct azimuth and distance being fifty-six degreesno minutes eight hundred and thirty feet;

6. Fifty-two degrees twelve minutes fivehundred fifty-two and sixty one-hundredths feet along the land of Kewalo-ukato the point of beginning and containing an area of thirty-three and eighty-eightone-hundredths acres, more or less.

(VII) Being portions of government landsof Kewalo-uka and Kalawahine situated on the east side of Tantalus Driveat Pauoa Valley, Honolulu, Oahu, State of Hawaii.

Beginning at the west corner of this parcelof land, the true azimuth and distance to a point called "Puu Ea"(pipe in concrete monument) being one hundred and seventy-four degreesthirty minutes four hundred one and ninety-nine one-hundredths feet, thecoordinates of said point of beginning referred to Government Survey TriangulationStation "Punchbowl" being two thousand eight hundred fifty-fiveand ten one-hundredths feet north and five thousand two hundred eighty-twoand twenty-five one-hundredths feet east and thence running by azimuthsmeasured clockwise from true south:

1. Two hundred and forty-eight degreesnineteen minutes forty seconds eight hundred fifty and fifty-four one-hundredthsfeet along the land of Kewalo-uka;

2. Sixteen degrees thirty minutes fivehundred feet along the land of Kewalo-uka, along the land of Kalawahine;

3. Twenty-five degrees no minutes fivehundred feet along the land of Kalawahine;

4. Thirty-five degrees no minutes threehundred and twenty feet along the land of Kalawahine;

5. Fifty degrees forty-six minutes ninety-sixand seventy one-hundredths feet along Makiki Forest Ridge lots;

6. Seventy-three degrees twenty minutestwo hundred fifty-five and ninety one-hundredths feet along Makiki ForestRidge lots;

7. Eighty-six degrees thirty-two minutesone hundred sixty-three and forty one-hundredths feet along Makiki ForestRidge lots;

8. Thence along the south side of TantalusDrive on a curve to the right with a radius of two hundred and seventyfeet, the direct azimuth and distance being two hundred and twenty-onedegrees twelve minutes nineteen seconds ninety-eight and thirty-six one-hundredthsfeet;

9. Two hundred and thirty-one degreesforty-two minutes one hundred ninety-three and thirty-five one-hundredthsfeet along the south side of Tantalus Drive;

10. Still along Tantalus Drive on a curveto the left with a radius of one hundred eighty and seventy-eight one-hundredthsfeet, the direct azimuth and distance being one hundred and eighty-onedegrees forty-five minutes fifty-five seconds two hundred seventy-six andseventy-two one hundredths feet;

11. Two hundred and forty-two degreesfifteen minutes sixty-two and thirty-two one-hundredths feet along theland of Kewalo-uka;

12. One hundred and seventy-four degreesthirty minutes five hundred twenty-eight and one one-hundredths feet alongthe land of Kewalo-uka to the point of beginning and containing an areaof five hundred and seventy-four thousand seven hundred and thirty squarefeet or thirteen and one hundred ninety-four one-thousandths acres.

(5) On the island of Kauai: Upper landof Waimea, above the cultivated sugar cane lands, in the district of Waimea(fifteen thousand acres, more or less); and Moloaa (two thousand five hundredacres, more or less), and Anahola and Kamalomalo (five thousand acres,more or less).

Wailuku, Maui: That parcel of governmentland, situated in the District of Wailuku, Island and County of Maui, comprisingtwelve and four hundred and fifty-five one-thousandths acres of the ILIOF KOU and being a portion of the land covered by General Lease Numbered2286 to Wailuku Sugar Company, Limited, notwithstanding the fact that saidparcel is cultivated sugar cane land, subject, however, to the terms ofsaid lease.

Cultivated Sugar Cane Lands: That parcelof Anahola, Island of Kauai, comprising four hundred and one and four hundredand twenty-three one-thousandths acres, hereinafter described and beingportion of the land covered by general lease numbered 2724 to the LihuePlantation Company, Limited, notwithstanding the fact that said parcelis cultivated sugar cane land, subject however, to the terms of said lease,said parcel being more particularly described as follows:

Being a portion of land described in generallease numbered 2724 to the Lihue Plantation Company situate in the districtof Anahola, Kauai, State of Hawaii, beginning at the northwest corner ofthis parcel of land, the coordinates of which referred to government triangulationstation south base are three thousand and forty-nine and sixty-two one-hundredthsfeet south, one thousand nine hundred and thirty-two and twenty-five one-hundredthsfeet west, and running thence by azimuths measured clockwise from truesouth two hundred and eighty-four degrees thirty minutes two hundred andfifty feet, thence on the arc of circular curve to the left, with a radiusof eight hundred and ninety feet and a central angle of thirty-five degreesfifteen minutes, the direct azimuth and distance being two hundred andsixty-six degrees fifty-two minutes thirty seconds five hundred and thirty-eightand ninety-six one-hundredths feet, thence two hundred and forty-nine degreesfifteen minutes one thousand eight hundred and nine and twenty-five one-hundredthsfeet, thence two hundred and twenty-four degrees fifteen minutes threethousand fifty-six feet, thence one hundred and thirty-four degrees fifteenminutes two hundred and seven feet, to the seashore at Anahola Bay, thencealong the seashore around Kahala Point, the direct azimuth and distancebeing two hundred and thirty-seven degrees six minutes seven seconds onethousand and sixty and fourteen one-hundredths feet, thence along the seashore,the direct azimuth and distance being three hundred and thirty-two degreesno minutes one thousand eight hundred and twenty-seven feet, thence alongthe seashore, the direct azimuth and distance being three hundred and fifty-fivedegrees no minutes one thousand eight hundred and twenty-seven feet, thenceeighty-seven degrees twenty minutes seven hundred and forty feet, thencefifty-nine degrees no minutes two thousand seven hundred and fifteen feet,thence sixty-nine degrees fifteen minutes one thousand eight hundred andeighty-seven and thirty-six one-hundredths feet, thence on the arc of acircular curve to the right with a radius of three thousand and twelvefeet, and a central angle of thirty-five degrees fifteen minutes the directazimuth and distance being eighty-six degrees fifty-two minutes thirtyseconds one thousand eight hundred and twenty-three and ninety-eight one-hundredthsfeet, thence one hundred and four degrees thirty minutes two hundred andfifty feet, thence one hundred and ninety-four degrees thirty minutes onethousand and thirty-one feet, thence on the arc of a circular curve tothe left with a radius of six hundred and seven and ninety-five one-hundredthsfeet and a central angle of fifty-three degrees three minutes thirty secondsthe direct azimuth and distance being seventy-seven degree fifty-eightminutes fifteen seconds five hundred and forty-three and nine one-hundredthsfeet to the government road, thence two hundred and thirty-one degreestwenty-six minutes thirty seconds one hundred and thirteen and sixty-oneone-hundredths feet along the government road, thence along the governmentroad on the arc of a circular curve to the left with a radius of four hundredand seventy-seven feet and a central angle of forty-four degrees twenty-sixminutes thirty seconds, the direct azimuth and distance being two hundredand nine degrees thirteen minutes fifteen seconds three hundred and sixtyand seventy-eight one-hundredths feet, thence one hundred and eighty-sevendegrees no minutes one hundred and sixty-nine and fifty-four one-hundredthsfeet along the government road, thence on the arc of a circular curve tothe left with a radius of three hundred and fifty-one and eight one-hundredthsfeet and a central angle of eighty-two degrees thirty minutes the directazimuth and distance being three hundred and twenty-five degrees forty-fiveminutes four hundred and sixty-two and ninety-seven one-hundredths feet,thence one hundred and ninety-four degrees thirty minutes five hundredand seventy-nine feet, thence one hundred and four degrees thirty minutesthree hundred feet, thence one hundred and ninety-four degrees thirty minutestwo hundred feet, thence two hundred eighty-four degrees thirty minutesthree hundred feet, thence one hundred and ninety-four degrees thirty minutestwo hundred and fifty-two feet to the point of beginning containing anarea of four hundred and one and four hundred and twenty-three one-thousandthsacres more or less.

[Am May 16, 1934, c 290, § 1, 48Stat 777; Aug. 29, 1935, c 810, § 1, 49 Stat 966; Jul. 10, 1937, c482, 50 Stat 497; Nov. 26, 1941, c 544, § 1, 55 Stat 782; May 31,1944, c 216, § 2, 58 Stat 260; Jun. 3, 1948, cc 384, 397, 62 Stat295, 303; Jul. 9, 1952, c 614, §§ 1, 2, 66 Stat 511; am L 1963,c 207, §§ 2, 5; am L 1990, c 150, § 7]

Editor's Note. - The Act of May31, 1944, c. 216, § 2, 58 Stat. 260, repealed so much of the abovesection as designates the lands hereinafter described as "availablelands," and restored such lands to their previous status under thecontrol of the Territory of Hawaii. The lands so restored on the islandof Hawaii are:

Those portions of Keaukaha tract 1, beingadditions to the Hilo airplane landing field, comprising several parcelsof land as follows:

Parcel 1. Land situated at Keaukaha, tract1, Waiakea, South Hilo, island of Hawaii, State of Hawaii, being portionsof lots 96, 97, 182, 183, 184, 185, Desha Avenue, and twenty-five footalley, of the Keaukaha residence lots, as shown on government survey registeredmaps 2723 and 3017, on file in the department of accounting and generalservices at Honolulu.

Beginning at the south corner of thispiece of land and on the west boundary of the Hawaiian home land, the trueazimuth and distance from the northwest corner of the Hilo airport addition,as shown on government survey registered maps 2723 and 3017 on file inthe department of accounting and general services at Honolulu, and on thesouth side of Kamehameha Avenue, being one hundred and eighty degrees nominutes four hundred and three and thirty-one one-hundredths feet, andthe coordinates of said point of beginning referred to Government SurveyTriangulation Station "Halai" being two thousand five hundredand twenty and thirty-one one-hundredths feet north and fifteen thousandfive hundred and fifty-three one-hundredths feet east, thence running byazimuths measured clockwise from true south:

1. One hundred and eighty degrees no minutessix hundred and fifteen and ninety-five one-hundredths feet along Governmentland and tract A of grant deeded by Territory of Hawaii to Hilo RailroadCompany;

2. Three hundred and ten degrees forty-twominutes four hundred and one and sixty-six one-hundredths feet along theremainders of Desha Avenue, lots 96, 97, twenty-five-foot alley, and lot182 of the Keaukaha residence lots; and

3. Forty degrees forty-two minutes fourhundred and sixty-six and ninety-seven one-hundredths feet along the remaindersof lots 182, 183, 184, 185, and Desha Avenue and the Keaukaha residencelots to the point of beginning, and containing an area of two and one hundredand fifty-five one-thousandths acres, more or less.

Parcel 2. Land situated on the south sideof Kamehameha Avenue, at Keaukaha, tract 1, Waiakea, South Hilo, Islandof Hawaii, State of Hawaii, being all of lots 449 to 486, inclusive, allof lots 546 to 564, inclusive, and portions of Kauhane, Spencer, Pua, andKamaka Avenues of the Keaukaha residence lots, as shown on Government SurveyRegistered Maps 2723 and 3017, on file in the department of accountingand general services at Honolulu.

Beginning at the northwest corner of thispiece of land; being also the southwest corner of Kamehameha and KauhaneAvenues, the coordinates of said point of beginning referred to GovernmentSurvey Triangulation Station "Halai" being two thousand one hundredand seventeen feet north and sixteen thousand eight hundred and eightyfeet east, thence running by azimuths measured clockwise from true south:

1. Two hundred and seventy degrees nominutes two thousand and seventeen and eighty-five one-hundredths feetalong the south side of Kamehameha Avenue;

2. Three hundred and sixty degrees nominutes four hundred and fifty feet along lots 448 and 487 of the Keaukaharesidence lots;

3. Three hundred and sixty degrees nominutes fifty feet across Kamaka Avenue;

4. Three hundred and sixty degrees nominutes two hundred and twenty-five feet along lot 545 of the Keaukaharesidence lots;

5. Ninety degrees no minutes three hundredand ninety-two and forty-eight one-hundredths feet along lots 583, 582,581, and 580 of the Keaukaha residence lots;

6. Ninety degrees no minutes fifty feetacross Pua Avenue;

7. Ninety degrees no minutes eight hundredand one and fifteen one-hundredths feet along lots 579, 578, 577, 576,575, 574, 573, and 572, of the Keaukaha residence lots;

8. Ninety degrees no minutes fifty feetacross Spencer Avenue;

9. Ninety degrees no minutes six hundredand seventy-four and twenty-two one-hundredths feet along lots 571, 570,569, 568, 567, 566, and 565, of the Keaukaha residence lots;

10. Ninety degrees no minutes fifty feetacross Kauhane Avenue; and

11. One hundred and eight degrees no minutesseven hundred and twenty-five feet along Puuhala Reserve and the presentHilo airport addition, as shown on Government Survey Registered Maps 2723and 3017 on file in the department of accounting and general services atHonolulu, to the point of beginning, and containing an area of thirty-threeand five hundred and eighty-five one-thousandths acres, more or less.

Parcel 3. As returned to the Commissionerof Public Lands of the Territory of Hawaii by resolution numbered 78 ofthe Hawaiian Homes Commission, dated May 13, 1942. Land situated at Keaukaha,tract 1, Waiakea, South Hilo, Island of Hawaii, State of Hawaii, beingthe whole of lots 446, 447, 448, 487, 488, 489, 543, 544, 545, 584, 585,and 586 and portions of lots 581, 582, and 583, and a portion of KamakaAvenue, of the Keaukaha residence lots, as shown on Government Survey RegisteredMaps 2723 and 3017, more particularly described as follows:

Beginning at the northeast corner of thispiece of land, being also the northeast corner of lot 446 and the southwestcorner of Kamehameha and Baker Avenues, the true azimuth and distance fromthe northwest corner of Hilo airport addition (of twenty and fifty-fourone-hundredths acres and on the south side of Kamehameha Highway), as shownon Government Survey Registered Maps 2723 and 3017, being two hundred andseventy degrees no minutes and three thousand six hundred and eighty-eightand seventy one-hundredths feet, and the coordinates of said point of beginningreferred to Government Survey Triangulation Station "Halai" beingtwo thousand one hundred and seventeen feet north and nineteen thousandone hundred and ninety-two and twenty-three one-hundredths feet east, thencerunning by azimuths measured clockwise from true south:

1. Three hundred and sixty degrees nominutes four hundred and fifty feet along the west side of Baker Avenue;

2. Three hundred and sixty degrees nominutes fifty feet across Kamaka Avenue;

3. Three hundred and sixty degrees nominutes four hundred and fifty feet along the west side of Baker Avenue;

4. Ninety degrees no minutes two hundredand ninety-four and thirty-eight one-hundredths feet along the north sideof Kawika Avenue;

5. One hundred and eighty degrees no minutesone hundred and twelve and fifty one-hundredths feet along lot 583 of theKeaukaha residence lots;

6. One hundred and ten degrees fifty-fiveminutes three hundred and fifteen and thirteen one-hundredths feet alongthe remainders of lots 583, 582, and 581 of the Keaukaha residence lots;

7. Two hundred and seventy degrees nominutes two hundred and ninety-four and thirty-six one-hundredths feetalong lots 548, 547, and 546 of the Keaukaha residence lots;

8. One hundred and eighty degrees no minutestwo hundred and twenty-five feet along lot 546 of the Keaukaha residencelots;

9. One hundred and eighty degrees no minutesfifty feet across Kamaka Avenue;

10. One hundred and eighty degrees nominutes four hundred and fifty feet along lots 486 and 449 of the Keaukahalots to the south side of Kamehameha Avenue; and

11. Two hundred and seventy degrees nominutes two hundred and ninety-four and thirty-eight one-hundredths feetalong the south side of Kamehameha Avenue to the point of beginning andcontaining an area of six and eighty one-hundredths acres.

Parcel 4. As returned to the Commissionerof Public Lands of the Territory of Hawaii by resolution numbered 78 ofthe Hawaiian Homes Commission, dated May 13, 1942. Land situated at Keaukaha,tract 1, Waiakea, South Hilo, Island of Hawaii, State of Hawaii, beingthe whole of lots 93, 94, 95, 98, 99, 100, 101, and 102 and portions oflots 92, 96, 97, and 103 and a portion of Desha Avenue of the Keaukaharesidence lots, as shown on Government Survey Registered Maps 2723 and3017, more particularly described as follows:

Beginning at the northwest corner of thispiece of land, being also the northwest corner of lot 94 and on the southeastside of twenty-five-foot road, the true azimuth and distance from the northwestcorner of Hilo airport addition (of twenty and fifty-four one-hundredthsacres and on the south side of Kamehameha Highway), as shown on GovernmentSurvey Registered Maps 2723 and 3017, being one hundred and eighty degreesno minutes one thousand seven hundred and fifty-one and eighty-seven one-hundredthsfeet, and the coordinates of said point of beginning referred to GovernmentSurvey Triangulation Station "Halai" being three thousand eighthundred and sixty-eight and eighty-seven one-hundredths feet north andfifteen thousand five hundred and three and fifty-three one-hundredthsfeet east, thence running by azimuths measured clockwise from true south:

1. Two hundred and forty-three degreesfifty minutes one hundred and seventy-seven and ninety-three one-hundredthsfeet along the southeast side of twenty-five-foot road;

2. Three hundred and thirty-three degreesfifty minutes two hundred and thirty-five and sixty one-hundredths feetalong lot 92 of the Keaukaha residence lots;

3. Two hundred and forty-three degreesfifty minutes one hundred feet along the remainder of lot 92 of the Keaukaharesidence lots;

4. Three hundred and thirty-three degreesfifty minutes two hundred feet along lot 91 of the Keaukaha residence lots;

5. Three hundred and thirty-three degreesfifty minutes fifty feet across Desha Avenue;

6. Two hundred and forty-three degreesfifty minutes one hundred feet along the southeast side of Desha Avenue;

7. Three hundred and thirty-three degreesfifty minutes two hundred and thirty-five and sixty one-hundredths feetalong lot 103 of the Keaukaha residence lots;

8. Two hundred and forty-three degreesfifty minutes one hundred feet along the remainder of lot 103 of the Keaukaharesidence lots;

9. Three hundred and thirty-three degreesfifty minutes two hundred feet along the southwest side of Kauhane Avenue;

10. Sixty-three degrees fifty minutessix hundred and eighty-eight and thirty-six one-hundredths feet along thenorthwest side of twenty-five foot road;

11. One hundred and thirty degrees forty-twominutes two hundred and eighty-six and seventy-three one-hundredths feetalong the remainders of lots 97 and 96 and Desha Avenue of the Keaukaharesidence lots; and

12. One hundred and eighty degrees nominutes seven hundred and thirty-two and sixty-one one-hundredths feetalong Government land and tract A of grant deed by the Territory of Hawaiito Hilo Railroad Company to the point of beginning and containing an areaof ten and eight hundred and forty-nine one-thousandths acres.

The Act of June 12, 1948, c. 458, 62 Stat.387, withdrew certain land as available land. The Act provided:

"That the portion of Hawaiian HomesCommission land of Waiakea-kai or Keaukaha, South Hilo, Hawaii, Territoryof Hawaii, more fully described as follows, is withdrawn as 'availableland' within the meaning of the Hawaiian Homes Commission Act of 1920 (42Stat. 108), as amended, and is hereby restored to its previous status underthe control of the Territory of Hawaii:

"Portion of Hawaiian home land ofKeaukaha, tract 2, Waiakea, South Hilo, Island of Hawaii, Territory ofHawaii, as returned to the Commissioner of Public Lands of the Territoryof Hawaii by Resolution numbered 85 of the Hawaiian Homes Commission, datedJuly 18, 1944, and more particularly described as follows:

"Beginning at a spike at the northwestcorner of this tract of land and on the southeast corner of the intersectionof Nene and Akepa Streets, the coordinates of said point of beginning referredto Government Survey Triangulation Station 'Halai' being five thousandtwo hundred and eight and twenty-one one-hundredths feet north and twenty-fourthousand eight hundred and eighteen and six one-hundredths feet east, andrunning by azimuths measured clockwise from true south:

"1. Two hundred and ninety degreeseleven minutes five hundred and sixty-one and eighty-two one-hundredthsfeet along the south side of Nene Street;

"2. Thence along same on a curve to theleft with a radius of one thousand four hundred and sixty-five and four-tenthsfeet, the chord azimuth and distance being two hundred and sixty-eightdegrees thirty-seven minutes one thousand and seventy-seven and thirtyone-hundredths feet;

"3. Two hundred and forty-seven degreesthree minutes five hundred and ninety-six and sixty-two one-hundredthsfeet along same;

"4. "Three hundred and sixtydegrees no minutes one thousand two hundred and thirty-seven and eighty-fiveone-hundredths feet;

"5. Ninety degrees no minutestwo thousand one hundred and fifty-three and sixty-nine one-hundredthsfeet;

"6. One hundred and eightydegrees no minutes one thousand one hundred and seventy-three and fourone-hundredths feet along the east side of the proposed extension of AkepaStreet to the point of beginning, and containing an area of fifty acres,more or less.

"Section 2. Notwithstandingthe foregoing provisions of this Act, if, at any time, in the opinion ofthe Commissioner of Public Lands, use of the above described lands hasbeen discontinued by the Department of Commerce, upon the making of sucha determination by the Commissioner of Public Lands such lands shall becomeavailable lands within the meaning of Section 203 of title II of the HawaiianHomes Commission Act, 1920, as amended."

The Act of August 29, 1935, c. 819,§ 1, 49 Stat. 966, and the Act of May 31, 1944, c. 216, § 2,58 Stat. 260, repealed so much of the above section as designates the landshereinafter described as "available lands", and restored suchlands to their previous status under the control of the Territory of Hawaii.The lands so restored on the Island of Molokai as of August 29, 1935 are:

Those portions of Hoolehua, apana 2, andPalaau, apana 2, comprising the Molokai airplane landing field as set asidefor public purposes by Executive Order Numbered 307 of the Governor ofthe Territory of Hawaii, dated December 15, 1927, consisting of two hundredfour and nine-tenths acres, more or less, and particularly described asfollows:

Beginning at a point on the southeastcorner of the said land, from which the azimuth (measured clockwise fromtrue south) and distance to United States Coast and Geodetic Survey TriangulationStation "Middle Hill" (Kualapuu) is two hundred and seventy-twodegrees twenty-three minutes thirty-nine seconds, twelve thousand sevenhundred twenty and nine-tenths feet, thence from said point of beginningby metes and bounds, eighty-five degrees ten minutes thirty seconds, threethousand four hundred and twenty-seven feet; one hundred and eighty degreesfifty-six minutes thirty seconds, two thousand six hundred thirty and two-tenthsfeet; two hundred and seventy-nine degrees fifty-five minutes thirty seconds,four thousand nine hundred seven and three-tenths feet; three hundred andforty-six degrees twenty minutes, three hundred forty-two and three-tenthsfeet near west edge of Kakainapahao Gulch; three degrees twenty-six minutes,four hundred twenty-seven and one-tenth feet; eighty-three degrees twenty-fourminutes, one thousand four hundred sixty-eight and two-tenths feet; fivedegrees fifty-eight minutes, five hundred seventy-one and three-tenthsfeet to the point of beginning.

The land so restored on the Island ofMolokai as of May 31, 1944 is:

That portion of Palaau, apana 2, beingan addition to the Molokai airplane landing field, as follows:

Parcel 1. As returned to the Commissionerof Public Lands of the Territory of Hawaii by Resolution numbered 68 ofthe Hawaiian Homes Commission, dated March 3, 1941, and consisting of thirteenand five hundred and twenty-seven one-thousandths acres, more or less,more particularly described as follows:

Beginning at the southeast corner of thispiece of land, on the west boundary of the present Molokai airport, thetrue azimuth and distance from the northwest corner of the Molokai airport(Executive Order Numbered 809) being no degrees fifty-six minutes thirtyseconds two hundred and forty-two feet, and the coordinates of said pointof beginning referred to Government Survey Triangulation Station "MiddleHill" being one and fifteen one-hundredths feet north and sixteenthousand one hundred and twenty-eight and one one-hundredths feet west,thence running by true azimuths measured clockwise from south:

(1) Sixty degrees twenty-five minuteseight hundred and forty-one and seventy-four one-hundredths feet alongthe remainders of fifty-foot-road and lot 170 of the Hawaiian Homes land;

(2) One hundred and eighty degrees fifty-sixminutes thirty seconds eight hundred and twelve and sixty-two one-hundredthsfeet along the remainder of lot 170 of the Hawaiian Homes land;

(3) Two hundred and forty degrees twenty-fiveminutes eight hundred and forty-one and seventy-four one-hundredths feetalong the remainders of Lot 170, Pine Avenue, lot 158 and fifty-foot-roadof the Hawaiian Homes land, to the west side of the Molokai airport; and

(4) No degrees fifty-six minutes thirtyseconds eight hundred and twelve and sixty-two one-hundredths feet alongthe west side of the present Molokai airport to the point of beginning.

Sections 2 to 6 of 1990 Haw. Sess. Laws,Act 150, provide the authority and criteria for the disposition of Kalawahine,Oahu by the department of land and natural resources.

1990 Haw. Sess. Laws, Act 150, §10 provides: "The provisions of the amendments made by this Act tothe Hawaiian Homes Commission Act, 1920, as amended, are declared to beseverable, and if any section, sentence, clause, or phrase, or the applicationthereof to any person or circumstances is held ineffective because thereis a requirement of having the consent of the United States to take effect,then that portion only shall take effect upon the granting of consent bythe United States and effectiveness of the remainder of the amendmentsor the application thereof shall not be affected."

The 1990 amendment, effective June 15,1990, added paragraph (III), detailing the portions of the land of KalawahineMakai of Tantalus Drive in the description for Parcel II.

Cross References. - As to definitionof "public lands," see § 171-2.

CASE NOTES

Cited in Ahia v. DOT, 69 Haw. 538,751 P.2d 81 (1988).

OPINIONS OF ATTORNEY GENERAL

Military reservations. - Landsset aside by executive order to the use of the United States for militarypurposes previous to the passage of the Hawaiian Homes Commission Act werenot "public lands" and therefore were not "available lands"granted by the act to the Hawaiian Homes Commission. Op. Att'y Gen. No.64-44 (1964).

§ 204. Control by department of "availablelands," return to board of land and natural resources, when; otherlands, use of.

(a) Upon the passage of this Act, allavailable lands shall immediately assume the status of Hawaiian home landsand be under the control of the department to be used and disposed of inaccordance with the provisions of this Act, except that:

(1) In case any available land isunder lease by the Territory of Hawaii, by virtue of section 73 of theHawaiian Organic Act, at the time of the passage of this Act, such landshall not assume the status of Hawaiian home lands until the lease expiresor the board of land and natural resources withdraws the lands from theoperation of the lease. If the land is covered by a lease containing awithdrawal clause, as provided in section 73(d) of the Hawaiian OrganicAct, the board of land and natural resources shall withdraw such landsfrom the operation of the lease whenever the department gives notice tothe board that the department is of the opinion that the lands are requiredby it for the purposes of this Act; and such withdrawal shall be held tobe for a public purpose within the meaning of that term as used in section73(d) of the Hawaiian Organic Act.

(2) Any availableland, including lands selected by the department out of a larger area,as provided by this Act, not leased as authorized by section 207(a)of this Act, may be returned to the board of land and natural resourcesas provided under section 212 of this Act, or maybe retained for management by the department. Any Hawaiian home lands generallease issued by the department after June 30, 1985, shall contain a withdrawalclause allowing the department to withdraw the land leased at any timeduring the term of the lease for the purposes of this Act.

In the management of any retained availablelands not required for leasing under section 207(a),the department may dispose of those lands to the public, including nativeHawaiians, on the same terms, conditions, restrictions, and uses applicableto the disposition of public lands in chapter 171, Hawaii Revised Statutes;provided that the department may not sell or dispose of such lands in feesimple except as authorized under section 205 ofthis Act; provided further that the department is expressly authorizedto negotiate, prior to negotiations with the general public, the dispositionof a lease of Hawaiian home lands to a native Hawaiian, or organizationor association owned or controlled by native Hawaiians, for commercial,industrial, or other business purposes, in accordance with the procedureset forth in section 171-59, Hawaii Revised Statutes, subject to the noticerequirement of section 171-16(c), Hawaii Revised Statutes, and the leaserental limitation imposed by section 171-17(b), Hawaii Revised Statutes.

(3) The department, with the approvalof the Secretary of the Interior, in order to consolidate its holdingsor to better effectuate the purposes of this Act, may exchange the titleto available lands for land, privately or publicly owned, of an equal value.All lands so acquired by the department shall assume the status of availablelands as though the land were originally designated as available landsunder section 203 of this Act, and all lands so conveyedby the department shall assume the status of the land for which it wasexchanged. The limitations imposed by section 73(1) of the Hawaiian OrganicAct and the land laws of Hawaii as to the area and value of land that maybe conveyed by way of exchange shall not apply to exchanges made pursuanthereto. No such exchange of land publicly owned by the State shall be madewithout the approval of two-thirds of the members of the board of landand natural resources. For the purposes of this paragraph, lands "publiclyowned" means land owned by a county or the State or the United States.

(b) Unless expressly provided elsewherein this Act, lands or an interest therein acquired by the department pursuantto section 213(b)(1), 221(c),or 225(b), or any other section of this Act authorizingthe department to acquire lands or an interest therein, may be managedand disposed of in the same manner and for the same purposes as Hawaiianhome lands.

[Am Mar. 27, 1928, c 142, §1, 45 Stat 246; Jul. 10, 1937, c 482, 50 Stat 503; Feb. 20, 1954, c 10,§ 1, 68 Stat 16; Jun. 18, 1954, c 319, § 1, 68 Stat 262; am L1963, c 207, §§ 2, 5(b); am L 1965, c 271, § 1; am L 1976,c 24, § 1; am Const Con 1978 and election Nov. 7, 1978; am L. 1985,c 60, § 1; am L 1990, c 14, § 1]

Editor's Note. - Section 2 of 1990Haw. Sess. Laws, Act 14, provides: "The provisions of the amendmentsmade by this Act to the Hawaiian Homes Commission Act, 1920, as amended,are declared to be severable and, if any section, sentence, clause, orphrase, or the application thereof to any person or circumstances is heldineffective because there is a requirement of having the consent of theUnited States to take effect, then that portion only shall take effectupon the granting of consent by the United States and the effectivenessof the remainder of these amendments or the application thereof shall notbe affected."

Section 5 of 1993 Haw. Sess. Laws, Act352, provides for the appointment of an independent representative to participatein pending non-judicial proceedings to resolve claims against the Statewith the Hawaiian homes commission and other administrative agencies. 1993Haw. Sess. Laws, Act 352, §§ 6, 7, and 8 provide "SECTION6. In accordance with section 204(a)(3) of the HawaiianHomes Commission Act, the State and the department of Hawaiian home landsmay exchange lands previously alienated from the Hawaiian home lands trustfor lands of equal value. The exchanges are subject to the consent andapproval of the Secretary of the United States Department of the Interior.The State may provide additional compensation to the department of Hawaiianhome lands in the form of additional land for Hawaiian home lands previouslyalienated from the trust.

"SECTION 7. The department of theattorney general, the department of Hawaiian home lands, and the officeof state planning are authorized to pursue Hawaiian home lands trust claimsagainst the federal government. In these endeavors, the department of theattorney general, the department of Hawaiian home lands, and the officeof state planning shall consult with the independent representative authorizedin section 5 of this Act. .

"SECTION 8. (a) The department ofland and natural resources is authorized to convey public lands to thedepartment of Hawaiian home lands in full or partial satisfaction of thepast rent due to the department of Hawaiian home lands to implement thepurposes of this Act.

"(b) The department of Hawaiian homelands may use the amounts appropriated in section 3 of this Act in paymentfor or credit towards the acquisition of public lands."

The 1985 amendment does not apply to leasesentered prior to July 1, 1985.

The 1990 amendment, effective April 17,1990, inserted "other lands, use of" in the catchline, designatedthe first paragraph as subsection (a), and added subsection (b).

Cross References. - As to the lasttwo sentences of this section, see §§ 171-5 and 171-50.

CASE NOTES

"Public" encompasses governmentand agencies. - The legislature intended "the public," asemployed in this section, to encompass the government and its agencies.Ahia v. DOT, 69 Haw. 538, 751 P.2d 81 (1988).

Inapplicability of preference whenlands are leased to government agency. - The preferential treatmentfor native Hawaiians authorized by the second proviso in the second paragraphof section 204(2) of the Hawaiian Homes CommissionAct when leases of Hawaiian home lands are issued "for commercial,industrial, or other business purposes" is not applicable when landsare leased by the Hawaiian homes commission to a government agency. Ahiav. DOT, 69 Haw. 538, 751 P.2d 81 (1988).

Section 204(2) permits a lease to agovernment agency of retained available lands not required for leasingunder section 207(a). Ahia v. DOT, 69 Haw. 538,751 P.2d 81 (1988).

Lease to government agency to enhancehomesteading program. - A decision by the Hawaiian homes commissionto lease 4.3 acres of an 11,000 acre tract of unimproved lands to a governmentagency to enhance a homesteading program the department of Hawaiian homelands hopes to establish is not incompatible with the mandate of the HawaiianHomes Commission Act to rehabilitate native Hawaiians through a seriesof projects. Ahia v. DOT, 69 Haw. 538, 751 P.2d 81 (1988).

Effect of § 171-95(a)(2).- When the disposition of Hawaiian home lands under the authority of section204(2) is by way of a lease to a government agency, the controlling statuteis § 171-95(a)(2). Ahia v. DOT, 69 Haw. 538, 751 P.2d 81 (1988).

OPINIONS OF ATTORNEY GENERAL

This section and chapter 195D.- The prohibitions on "taking" threatened and endangered plantsunder chapter 195D are not necessarily in conflict with the commission'sresponsibility to manage and dispose of these trust lands., Op. Att'y Gen.No. 95-05 (1995).

Extent or nature of trust obligationsof the department of Hawaiian home lands may be determined by examiningwell-settled principles enunciated by the federal courts regarding landsset aside by Congress in trust for the benefit of other native Americans.Ahuna v. Department of Hawaiian Home Lands, 64 Haw. 327, 640 P.2d 1161(1982).

The department of Hawaiian home landshas the obligation to administer the trust solely in the interest of nativeHawaiian beneficiaries. Ahuna v. Department of Hawaiian Home Lands, 64Haw. 327, 640 P.2d 1161 (1982).

The Hawaiian homes commission, which overseesthe department of Hawaiian home lands, is the specific state entity obligedto implement the fiduciary duty under the Hawaiian Homes Commission Acton behalf of eligible native Hawaiians. Ahuna v. Department of HawaiianHome Lands, 64 Haw. 327, 640 P.2d 1161 (1982).

In dealing with eligible native Hawaiians,collectively or individually, the department of Hawaiian home lands mustadhere to the high fiduciary duties normally owed by a trustee to its beneficiaries.Ahuna v. Department of Hawaiian Home Lands, 64 Haw. 327, 640 P.2d 1161(1982).

Eviction. - Plaintiffs, whowere evicted from property owned and managed by the State of Hawaii pursuantto subsection (2) of this section had ample opportunity to be heard wherepredeprivation process included a petition for writ of mandamus to theSupreme Court of Hawaii, a motion for temporary restraining order in thefederal district court, a motion for reconsideration of order denying theirmotion for temporary restraining order, where they failed to take advantageof procedures which allow permits for temporary occupancy of Hawaiian Homelands (§ 204(2) and § 171-55), and where, in addition to theirpre-deprivation process, plaintiffs indirectly received further processin a state trial which resulted in their trespass convictions. Grace v.Drake, 832 F. Supp. 1399 (D. Haw. 1991), aff'd, 8 F.3d 26 (9th Cir. 1993).

Breach of trust duty.- The department of Hawaiian home lands has the trust obligation to usereasonable skill and care to make trust property productive, and trusteesmust act as an ordinary and prudent person would in dealing with his orher own property. The department and commission breached this duty by refusingto lease a full ten-acre lot to an eligible native Hawaiian beneficiary,which left almost four acres of agricultural land in an unproductive state,because of a mere possibility that it might be subject to use in the extensionof a highway. Ahuna v. Department of Hawaiian Home Lands, 64 Haw. 327,640 P.2d 1161 (1982).

The department and commission breachedtheir fiduciary duty to eligible native Hawaiian beneficiary and violatedthe trust obligations imposed by the Hawaii Constitution by giving undueweight to the interests of the state, the county of Hawaii, and the citizensor taxpayers of Hawaii in general in determining to withhold certain acreagefrom a lease issued to the beneficiary. Ahuna v. Department of HawaiianHome Lands, 64 Haw. 327, 640 P.2d 1161 (1982).

Threatened and endangered plants areprotected on Hawaiian home lands under the provisions of chapter 195D,as well as under the provisions of the federal Endangered Species Act of1973, ("ESA"), to the same extent that such plants are protectedelsewhere in Hawaii., Op. Att'y Gen. No. 95-05 (1995).

Anyone who "takes" threatenedor endangered plants on Hawaiian home lands is subject to state and federalcivil and criminal penalties., Op. Att'y Gen. No. 95-05 (1995).

Cited in Keaukaha-Panaewa CommunityAss'n ex rel. Kalanui v. Hawaiian Homes Comm'n, 502 F. Supp. 392 (D. Haw.1980).

Zoning. - Where Hawaiian home landsare needed or required for the purposes of the Hawaiian Homes CommissionAct, any zoning ordinance purporting to change the land use designationby the department of Hawaiian home lands or to impose restrictions on theuse of such Hawaiian home lands would be outside the scope of any powergranted to counties. Op. Att'y Gen. No. 72-21 (1972).

Where the commission has determined thatcertain lands are not required for purposes of the Hawaiian Homes CommissionAct, such lands could be subjected to county zoning regulations. Op. Att'yGen. No. 72-21 (1972).

The Hawaiian homes commission's actionof requesting and initiating rezoning by a county was tantamount to a findingthat the Hawaiian home lands in question were no longer needed or requiredfor the purposes of the Hawaiian Homes Commission Act, and because of thatfinding the county was authorized to rezone the lands from residentialto light industrial use and could also continue to exercise zoning powersover such lands, but should the commission subsequently determine thatthose lands were again needed or required for the purposes of the act,the authority of the county to zone the lands would terminate. Op. Att'yGen. No. 72-21 (1972).

RESEARCH REFERENCES

Hawaii Legal Reporter.
As to amendment information sheet, see 78-2 Haw. Legal Rep. 78-657.

[§ 204.5]. Additional powers.

In addition and supplemental to the powersgranted to the department by law, and notwithstanding any law to the contrary,the department may:

(1) With the approval of the governor,undertake and carry out the development of any Hawaiian home lands availablefor lease under and pursuant to section 207 of thisAct by assembling these lands in residential developments and providingfor the construction, reconstruction, improvement, alteration, or repairof public facilities therein, including, without limitation, streets, stormdrainage systems, pedestrian ways, water facilities and systems, sidewalks,street lighting, sanitary sewerage facilities and systems, utility andservice corridors, and utility lines, where applicable, sufficient to adequatelyservice developable improvements therein, sites for schools, parks, off-streetparking facilities, and other community facilities;

(2) With the approval of the governor,undertake and carry out the development of available lands for homestead,commercial, and multipurpose projects as provided in section 220.5of this Act, as a developer under this section or in association with adeveloper agreement entered into pursuant to this section by providingfor the construction, reconstruction, improvement, alteration, or repairof public facilities for development, including, without limitation, streets,storm drainage systems, pedestrian ways, water facilities and systems,sidewalks, street lighting, sanitary sewerage facilities and systems, utilityand service corridors, and utility lines, where applicable, sufficientto adequately service developable improvements therein, sites for schools,parks, off-street parking facilities, and other community facilities;

(3) With the approval of the governor,designate by resolution of the commission all or any portion of a developmentor multiple developments undertaken pursuant to this section an "undertaking"under part III of chapter 39, Hawaii Revised Statutes; and

(4) Exercise the powers granted undersection 39-53, Hawaii Revised Statutes, including the power to issue revenuebonds from time to time as authorized by the legislature.

All provisions of part III of chapter39, Hawaii Revised Statutes, shall apply to the department and all revenuebonds issued by the department shall be issued pursuant to the provisionsof that part, except these revenue bonds shall be issued in the name ofthe department, and not in the name of the State.

As applied to the department, the term"undertaking" as used in part III of chapter 39, Hawaii RevisedStatutes, shall include a residential development or a development of homestead,commercial, or multipurpose projects under this Act. The term "revenue"as used in part III of chapter 39, Hawaii Revised Statutes, shall includeall or any portion of the rentals derived from the leasing of Hawaiianhome lands or available lands, whether or not the property is a part ofthe development being financed.

[L 1989, c 283, § 2]

Editor's Note. - Section 3 of 1989Haw. Sess. Laws, Act 283, provides: "The provisions of the amendmentsmade by this Act to the Hawaiian Homes Commission Act, 1920, as amended,are declared to be severable and if any section, clause, or phrase, orthe application thereof to any person or circumstances is held to be invalidor ineffective because there is a requirement of having the consent ofthe United States to take effect, then that portion only shall take effectupon the granting of consent by the United States and effectiveness ofthe remainder of these amendments or the application thereof shall notbe affected."

Effective date. - This sectionbecame effective June 9, 1989.

§ 205. [Sale or lease, limitations on.]

Available lands shall be sold or leasedonly (1) in the manner and for the purposes set out in this title, or (2)as may be necessary to complete any valid agreement of sale or lease ineffect at the time of the passage of this Act; except that such limitationsshall not apply to the unselected portions of lands from which the departmenthas made a selection and given notice thereof, or failed so to select andgive notice within the time limit, as provided in paragraph (3) of section204 of this title.

[Am K 1963, c 207, § 2]

Editor's Note. - The referencein this section to paragraph (3) of section 204 wasto paragraph (3) of section 204 as originally enacted,which fixed a period of eight years after the first meeting of the commission(department). The first meeting was held September 20, 1921.

§ 206. [Other officers not to control Hawaiianhome lands; exception.]

The powers and duties of the governorand the board of land and natural resources, in respect to lands of theState, shall not extend to lands having the status of Hawaiian home lands,except as specifically provided in this title.

[Am L 1963, c 207, § 5(a), (b)]

Editor's Note. - The Act of July10, 1937, c. 484, 50 Stat. 508, provides in part: "That the legislatureof the Territory of Hawaii may create a public corporate authority to engagein slum clearance, or housing undertakings, or both, within such Territory.. . . The legislature . . . may, without regard to any federal acts restrictingthe disposition of public lands of the Territory, authorize the commissionerof public lands, the Hawaiian homes commissioner, and any other officersof the Territory having power to manage and dispose of its public lands,to grant, convey, or lease to such authority parts of the public domain,and may provide that any of the public domain or other property acquiredby such authority may be mortgaged by it as security for its bonds. . .."

CASE NOTES

The exercise of the state's inherentpolice power on Hawaiian home lands does not necessarily conflict withthe responsibility to manage and dispose of these trust lands. State v.Jim, 80 Haw. 168, 907 P.2d 754 (1995).

Police power not limited. - Thelimitation on executive power set out in this section was never intendedto limit the police power of the state. State v. Jim, 80 Haw. 168, 907P.2d 754 (1995).

Cited in Grace v. Drake, 832 F.Supp. 1399 (D. Haw. 1991).

OPINIONS OF ATTORNEY GENERAL

An executive order in 1955 purportingto set aside Hawaii home lands for a park pursuant to the Organic Act,§ 73(q), need not be withdrawn under § 171-11, because the executiveorder was invalid and of no effect under this section and § 212 ofthe Hawaii Homes Commission Act. Op. Att'y Gen. No. 75-3 (1975).

§ 207. Leases to Hawaiians, licenses.

(a) The departmentis authorized to lease to native Hawaiians the right to the use and occupancyof a tract or tracts of Hawaiian home lands within the following acreagelimits per each lessee: (1) not more than forty acres of agriculture landsor lands used for aquaculture purposes; or (2) not more than one hundredacres of irrigated pastoral lands and not more than one thousand acresof other pastoral lands; or (3) not more than one acre of any class ofland to be used as a residence lot; provided that in the case of any existinglease of a farm lot in the Kalanianaole Settlement on Molokai, a residencelot may exceed one acre but shall not exceed four acres in area, the locationof such area to be selected by the department; provided further that alease granted to any lessee may include two detached farm lots or aquaculturelots, as the case may be, located on the same island and within a reasonabledistance of each other, one of which, to be designated by the department,shall be occupied by the lessee as the lessee's home, the gross acreageof both lots not to exceed the maximum acreage of an agricultural, pastoral,or aquaculture lot, as the case may be, as provided in this section. Thedepartment is authorized to develop and construct multifamily units forhousing native Hawaiians. The method of disposition, as well as the terms,conditions, covenants, and restrictions as to the use and occupancy ofsuch multifamily units shall be prescribed by rules adopted by the departmentpursuant to chapter 91.

(b) The title to lands so leased shallremain in the [State]. Applications for tracts shall be made to and grantedby the department, under such regulations, not in conflict with any provisionsof this title, as the department may prescribe. The department shall, whenevertracts are available, enter into such a lease with any applicant who, inthe opinion of the department, is qualified to perform the conditions ofsuch lease.

(c) (1) Thedepartment is authorized to grant licenses as easements for railroads,telephone lines, electric power and light lines, gas mains, and the like.The department is also authorized to grant licenses for lots within a districtin which lands are leased under the provisions of this section, for:

(A) Churches, hospitals, public schools,post offices, and other improvements for public purposes; and

(B) Theaters,garages, service stations, markets, stores, and other mercantile establishments(all of which shall be owned by native Hawaiians or by organizations formedand controlled by native Hawaiians).

(2) The department is also authorizedto grant licenses to the United States for reservations, roads, and otherrights-of-way, water storage and distribution facilities, and practicetarget ranges.

(3) Any license issued under this subsectionshall be subject to such terms, conditions, and restrictions as the departmentshall determine and shall not restrict the areas required by the departmentin carrying on its duties, nor interfere in any way with the department'soperation or maintenance activities.

[Am Feb. 3, 1923, c 56, § 1, 42 Stat1222; May 16, 1934, c 290, § 2, 48 Stat 779; Jul. 10, 1937, c 482,50 Stat 504; May 31, 1944, c 216, §§ 3, 4, 58 Stat 264; Jun.14, 1948, c 464, §§ 1, 2, 62 Stat 390; Jun. 18, 1954, c 321,§ 1, 68 Stat 263; Aug. 23, 1958, Pub L 85-733, 72 Stat 822; am L 1963,c 207, § 2; am L 1981, c 90, § 1; am L 1983, c 125, § 2;am L 1984, c 27, § 1 and c 37, § 2; am L 1985, c 69, § 1and c 159, § 2]

Editor's Note. - In addition tothe provisions herein made for leases to native Hawaiians, the Act of June20, 1938, c. 530, § 3, 52 Stat. 781, after providing for the Kalapanaextension to the Hawaii National Park, authorized the Secretary of theInterior to lease home sites herein to native Hawaiians under certain circumstances.

Cross References. - As to the HomesteadersCooperative Association's use of Hoolehua Store building free of rent,subject to certain conditions, see 1959 Haw. Sess. Laws, JR 17.

CASE NOTES

42 U.S.C. § 1983 actions allowed.- The Admission Act and the Hawaiian Homes Commission Act do not containsufficiently comprehensive remedial devices that would justify a conclusionthat Congress intended to foreclose 42 U.S.C. § 1983 actions. AgedHawaiians v. Hawaiian Homes Comm'n, 78 Haw. 192, 891 P.2d 279 (1995).

Beneficiaries entitled to contestedcase hearings. - Hawaii Homes Commission Act beneficiaries on the pastoralwaiting list were entitled to contested case hearings at which the Commissionmust at least consider their applications for pastoral lot awards of sufficientacreage for commercial ranching activities. Aged Hawaiians v. HawaiianHomes Comm'n, 78 Haw. 192, 891 P.2d 279 (1995).

Lease to government agency. - Section204(2) permits a lease to a government agency ofretained available lands not required for leasing under section 207(a).Ahia v. DOT, 69 Haw. 538, 751 P.2d 81 (1988).

OPINIONS OF ATTORNEY GENERAL

Limitation of powers. - The powersof the Hawaiian homes commission relating to the granting of rights toHawaiian lessees and licensees to use and occupy Hawaiian home land areclearly prescribed and limited in this section. These powers do not includeauthority to grant a license, on a monthly charge basis, to any individualto occupy Hawaiian home lands. Op. Att'y Gen. No. 61-64 (1961).

Eminent domain. - In the absenceof specific authorization to condemn Hawaiian homes commission lands, andthe general rule of law that a private corporation, to whom the power ofeminent domain has been delegated, may not condemn public lands unlessauthorized to do so specifically or by necessary implication, public utilitycompanies could not acquire land from the department of Hawaiian home landsthrough eminent domain proceedings. Op. Att'y Gen. No. 60-77 (1960).

Subdivision and sublease. - Underthis section and § 208 of the Hawaiian Home Commission Act, lesseecould not subdivide her homestead tract on Molokai and sublease a portionthereof to her daughter, and the commission was without authority to approvesuch a plan. Op. Att'y Gen. No. 61-65 (1961).

§ 208. Conditions of leases.

Each lease made under the authority grantedthe department by section 207 of this Act, and thetract in respect to which the lease is made, shall be deemed subject tothe following conditions, whether or not stipulated in the lease:

(1) The original lessee shall be a nativeHawaiian, not less than eighteen years of age. In case two lessees eitheroriginal or in succession marry, they shall choose the lease to be retained,and the remaining lease shall be transferred, quitclaimed, or canceledin accordance with the provisions of succeeding sections.

(2) The lessee shall pay a rental of $1a year for the tract and the lease shall be for a term of ninety-nine years;except that the department may extend the term of any lease provided thatthe approval of any extension shall be subject to the condition that theaggregate of the initial ninety-nine year term and any extension grantedshall not be for more than one hundred ninety-nine years.

(3) The lessee may be required to occupyand commence to use or cultivate the tract as the person's home or farmor occupy and commence to use the tract for aquaculture purposes, as thecase may be, within one year after the commencement of the term of thelease.

(4) The lessee shall thereafter, for atleast such part of each year as the department shall prescribe by rules,so occupy and use or cultivate the tract on the person's own behalf.

(5) The lessee shall not in anymanner transfer to, or otherwise hold for the benefit of, any other personor group of persons or organizations of any kind, except a native Hawaiianor Hawaiians, and then only upon the approval of the department, or agreeso to transfer, or otherwise hold, the person's interest in the tract.Such interest shall not, except in pursuance of such a transfer to or holdingfor or agreement with a native Hawaiian or Hawaiians approved of by thedepartment, or for any indebtedness due the department or for taxes, orfor any other indebtedness the payment of which has been assured by thedepartment, including loans from other agencies where such loans have beenapproved by the department, be subject to attachment, levy, or sale uponcourt process. The lessee shall not sublet the person's interest in thetract or improvements thereon.

(6) Notwithstanding the provisions ofparagraph (5), the lessee, with the consent and approval of the commission,may mortgage or pledge the lessee's interest in the tract or improvementsthereon to a recognized lending institution authorized to do business asa lending institution in either the State or elsewhere in the United States;provided the loan secured by a mortgage on the lessee's leasehold interestis insured or guaranteed by the Federal Housing Administration, VeteransAdministration, or any other federal agency and their respective successorsand assigns, which are authorized to insure or guarantee such loans. Themortgagee's interest in any such mortgage shall be freely assignable. Suchmortgages, to be effective, must be consented to and approved by the commissionand recorded with the department.

Further, notwithstanding the authorizedpurposes of loan limitations imposed under section 214of this Act and the authorized loan amount limitations imposed under section215 of this Act, loans made by lending institutionsas provided in this paragraph, insured or guaranteed by the Federal HousingAdministration, Veterans Administration, or any other federal agency andtheir respective successors and assigns, may be for such purposes and insuch amounts, not to exceed the maximum insurable limits, together withsuch assistance payments and other fees, as established under section 421of the Housing and Urban Rural Recovery Act of 1983 which amended TitleII of the National Housing Act of 1934 by adding section 247, and its implementingregulations, to permit the Secretary of Housing and Urban Development toinsure loans secured by a mortgage executed by the homestead lessee coveringa homestead lease issued under section 207(a) ofthis Act and upon which there is located a one to four family single familyresidence.

(7) The lessee shall pay all taxes assessedupon the tract and improvements thereon. The department may pay such taxesand have a lien therefor as provided by section 216of this Act.

(8) The lessee shall perform such otherconditions, not in conflict with any provision of this Act, as the departmentmay stipulate in the lease; provided that an original lessee shall be exemptfrom all taxes for the first seven years after commencement of the termof the lease.

[Am Jul. 10, 1937, c 482, 50 Stat504; Nov. 26, 1941, c 544, § 2, 55 Stat 783; Aug. 21, 1958, Pub L85-710, 72 Stat 706; am L 1963, c 207, § 2; am L 1967, c 146, §§1, 2; am L 1973, c 66, § 1; am L 1974, c 175, § 1; am L 1978,c 229, § 5; am L 1981, c 90, § 2; am L 1985, c 60, § 2 andc 284, § 1; am L 1990, c 305, § 1]

Editor's Note. - The amendmentby 1985 Haw. Sess. Laws, Act 60 does not apply to leases entered priorto July 1, 1985.

Sections 2 to 6 of 1990 Haw. Sess. Laws,Act 150, provide the authority and criteria for the disposition of Kalawahine,Oahu by the department of land and natural resources.

Section 2 of 1990 Haw. Sess. Laws, Act305, provides: "The provisions of the amendments made by this Actto the Hawaiian Homes Commission Act, 1920, as amended, are declared tobe severable and, if any section, sentence, clause, or phrase or the applicationthereof to any person or circumstances is held ineffective because thereis a requirement of having the consent of the United States to take effect,then that portion only shall take effect upon the granting of consent bythe United States and the effectiveness of the remainder of these amendmentsor the application thereof shall not be affected."

The 1990 amendment, effective July3, 1990, at the end of paragraph (2), inserted the language beginning "exceptthat the department"; in paragraph (3) substituted "commencementof the term of the lease" for "lease is made"; in paragraph(8) substituted "after commencement of the term of the lease"for "from date of lease."

U.S. Code. - Section 247 of TitleII of the National Housing Act of 1934, referred to in this section, iscodified at 12 U.S.C., § 1715z-12.

CASE NOTES

Department approval. - To protectthe lessee from an improvident action on his part, subsection (5) requiresthe approval of the department to alienate or encumber the lease or agreeto do so. Kahalewai v. Rodrigues, 4 Haw. App. 446, 667 P.2d 839, reconsiderationdenied, 4 Haw. App. 674 (1983).

Cited in Yuen v. Kimikaua, 37 Haw.8 (1944); In re Ainoa, 60 Haw. 487, 591 P.2d 607 (1979).

OPINIONS OF ATTORNEY GENERAL

Subdivision and sublease. - Underthis section and § 207 of the Hawaiian Home Commission Act, lesseecould not subdivide her homestead tract on Molokai and sublease a portionthereof to her daughter, and the commission was without authority to approvesuch a plan. Op. Att'y Gen. No. 61-65 (1961).

§ 209. Successors to lessees.

(a) [For effective date, see note.] Uponthe death of the lessee, the lessee's interest in the tract or tracts andthe improvements thereon, including growing crops and aquacultural stock(either on the tract or in any collective contract or program to whichthe lessee is a party by virtue of the lessee's interest in the tract ortracts), shall vest in the relatives of the decedent as provided in thisparagraph. From the following relatives of the lessee who are (1) at leastone-quarter Hawaiian, husband, wife, or children, or (2) native Hawaiian,father and mother, widows or widowers of the children, grandchildren, brothersand sisters, widows or widowers of the brothers and sisters, or niecesand nephews, - the lessee shall designate the person or persons to whomthe lessee directs the lessee's interest in the tract or tracts to vestupon the lessee's death. The Hawaiian blood requirements shall not applyto the descendants of those who are not native Hawaiians but who were entitledto the leased lands under section 3 of the Act of May 16, 1934 (48 Stat.777, 779), as amended, or under section 3 of the Act of July 9, 1952 (66Stat. 511, 513). In all cases that person or persons need not be eighteenyears of age. The designation shall be in writing, may be specified atthe time of execution of the lease with a right in the lessee in similarmanner to change the beneficiary at any time and shall be filed with thedepartment and approved by the department in order to be effective to vestthe interests in the successor or successors so named.

In case of the death of any lessee, exceptas hereinabove provided, who has failed to specify a successor or successorsas approved by the department, the department may select from only thefollowing qualified relatives of the decedent:

(1) Husband or wife; or

(2) If there is no husband or wife, thenthe children; or

(3) If there is no husband, wife, or child,then from the following relatives of the lessee who are native Hawaiian:father and mother, widows or widowers of the children, grandchildren, brothersand sisters, widows or widowers of the brothers and sisters, or niecesand nephews.

The rights to the use and occupancy ofthe tract or tracts may be made effective as of the date of the death ofthe lessee.

In the case of the death of a lessee leavingno designated successor or successors, husband, wife, children, or relativequalified to be a lessee of Hawaiian home lands, the land subject to thelease shall resume its status as unleased Hawaiian home lands and the departmentis authorized to lease the land to a native Hawaiian as provided in thisAct.

Upon the death of a lessee who has notdesignated a successor and who leaves a spouse not qualified to succeedto the lease or children not qualified to succeed to the lease, or uponthe death of a lessee leaving no relative qualified to be a lessee of Hawaiianhome lands, or the cancellation of a lease by the department, or the surrenderof a lease by the lessee, the department shall appraise the value of allthe improvements and growing crops or improvements and aquacultural stock,as the case may be, and shall pay to the nonqualified spouse or the nonqualifiedchildren as the lessee shall have designated prior to the lessee's death,or to the legal representative of the deceased lessee, or to the previouslessee, as the case may be, the value thereof, less any indebtedness tothe department, or for taxes, or for any other indebtedness the paymentof which has been assured by the department, owed by the deceased lesseeor the previous lessee. These payments shall be made out of the Hawaiianhome loan fund and shall be considered an advance therefrom and shall berepaid by the successor or successors to the tract involved. If availablecash in the Hawaiian home loan fund is insufficient to make these payments,payments may be advanced from the Hawaiian home general loan fund and shallbe repaid by the successor or successors to the tract involved; providedthat any repayment for advances made from the Hawaiian home general loanfund shall be at the interest rate established by the department for loansmade from the Hawaiian home general loan fund.

(a) [For effective date, see note.]Upon the death of the lessee, the lessee's interest in the tract ortracts and the improvements thereon, including growing crops and aquaculturalstock (either on the tract or in any collective contract or program towhich the lessee is a party by virtue of the lessee's interest in the tractor tracts), shall vest in the relatives of the decedent as provided inthis paragraph. From the following relatives of the lessee who are (1)at least one-quarter Hawaiian, husband, wife, children, or grandchildrenor (2) native Hawaiian, father and mother, widows or widowers of the children,brothers and sisters, widows or widowers of the brothers and sisters, ornieces and nephews, - the lessee shall designate the person or personsto whom the lessee directs the lessee's interest in the tract or tractsto vest upon the lessee's death. The Hawaiian blood requirements shallnot apply to the descendants of those who are not native Hawaiians butwho were entitled to the leased lands under section 3 of the Act of May16, 1934 (48 Stat. 777, 779), as amended, or under section 3 of the Actof July 9, 1952 (66 Stat. 511, 513). In all cases that person or personsneed not be eighteen years of age. The designation shall be in writing,may be specified at the time of execution of the lease with a right inthe lessee in similar manner to change the beneficiary at any time andshall be filed with the department and approved by the department in orderto be effective to vest the interests in the successor or successors sonamed.

(1) Husband or wife; or

(2) If there is no husband or wife, thenthe children; or

(3) If there is no husband, wife, or child,then the grandchildren; or

(4) If there is no husband, wife, child,or grandchild, then from the following relatives of the lessee who arenative Hawaiian: father and mother, widows or widowers of the children,brothers and sisters, widows or widowers of the brothers and sisters, ornieces and nephews.

The rights to the use and occupancy ofthe tract or tracts may be made effective as of the date of the death ofthe lessee.

In the case of the death of a lessee leavingno designated successor or successors, husband, wife, children, grandchildren,or relative qualified to be a lessee of Hawaiian home lands, the land subjectto the lease shall resume its status as unleased Hawaiian home lands andthe department is authorized to lease the land to a native Hawaiian asprovided in this Act.

(b) The appraisal of improvements andgrowing crops, or stock, if any, shall be made by any one of the followingmethods:

(1) By a disinterested appraiser hiredby the department; provided that the previous lessee or deceased lessee'slegal representative shall not be charged for the cost of the appraisal;or

(2) By one disinterested appraiser mutuallyagreeable to both the department and the previous lessee or the deceasedlessee's legal representative, with the cost of appraisal borne equallyby the two parties; or

(3) By not more than three disinterestedappraisers of which the first shall be contracted for and paid by the department.If the previous lessee or the deceased lessee's legal representative doesnot agree with the appraised value, the previous lessee or the deceasedlessee's legal representative shall contract with and pay for the servicesof a second appraiser whose appraisal report shall be submitted to thedepartment not later than ninety days from the date of the first appraisalreport; provided that the first appraisal shall be used if the second appraiseris not hired within thirty days from the date the department transmitsthe first appraisal report to the previous lessee or the deceased lessee'srepresentative. If the appraisal values are different and a compromisevalue between the two appraisals is not reached, a third appraisal shallbe made by an appraiser appointed by the first two appraisers not laterthan ninety days from the date of the second appraisal report and the thirdappraiser shall determine the final value. The cost of the third appraisalshall be borne equally by the department and the previous lessee or thedeceased lessee's legal representative.

The department may adopt rules not inconflict with this section to establish appraisal procedures, includingthe time period by which the department and the previous lessee or thedeceased lessee's legal representative shall act on appraisal matters.

(c) If a previous lessee has abandonedthe tract or tracts or cannot be located after at least two attempts tocontact the previous lessee by certified mail, the department by publicnotice published at least once in each of four successive weeks in a newspaperof general circulation in the State shall give notice to the previous lesseethat the lease will be canceled in accordance with sections 210and 216 of this title and the department will appraisethe value of the improvements and growing crops and stock, if any, if theprevious lessee does not present himself or herself within one hundredand twenty days from the first day of publication of the notice. Followingcancellation of the lease and appraisal of the improvements and growingcrops and stock, if any, the department shall make the payout as providedin subsection (a).

(d) After the cancellation of a leaseby the department in accordance with sections 210and 216 of this title, or the surrender of a leaseby a lessee, the department may transfer the lease or issue a new leaseto any qualified native Hawaiian regardless of whether or not that personis related in any way by blood or marriage to the previous lessee.

(e) If any successor or successors toa tract is a minor or minors, the department may appoint a guardian therefor,subject to the approval of the court of proper jurisdiction. The guardianshall be authorized to represent the successor or successors in all matterspertaining to the leasehold; provided that the guardian, in so representingthe successor or successors, shall comply with this title and the stipulationsand provisions contained in the lease, except that the guardian need notbe a native Hawaiian as defined in section 201 ofthis title.

[Am Jul. 10, 1937, c 482, 50 Stat 504;Nov. 26, 1941, c 544, § 3, 55 Stat 783; Jul. 9, 1952, c 614, §4, 66 Stat 514; am L 1963, c 207, § 2; am L 1981, c 90, § 3 andc 112, § 1; am L 1982, c 272, § 1; am L 1985, c 137, § 1;am L 1987, c 36, § 3; am L 1990, c 150, § 8; am L 1992, c 92,§ 1; am L 1993, c 147, § 1; am L 1994, c 37, § 1 and c 109,§ 1]

Subsection (a) Set Out Twice. -The first version of subsection (a) set out above is effective until consentof the United States Congress is given for the approval of 1994 Haw. Sess.Laws, Act 37. The second version of subsection (a) reflects amendmentsby Act 37, effective upon such consent.

Amendments to this section by 1981 Haw.Sess. Laws, Act 112, § 1, which were subject to consent of Congress,were repealed by 1987 Haw. Sess. Laws, Act 36, § 2.

Editor's note. - Sections 2 to6 of 1990 Haw. Sess. Laws, Act 150, provide the authority and criteriafor the disposition of Kalawahine, Oahu by the department of land and naturalresources.

Section 10 of 1990 Haw. Sess. Laws, Act150, provides: "The provisions of the amendments made by this Actto the Hawaiian Homes Commission Act, 1920, as amended, are declared tobe severable, and if any section, sentence, clause, or phrase, or the applicationthereof to any person or circumstances is held ineffective because thereis a requirement of having the consent of the United States to take effect,then that portion only shall take effect upon the granting of consent bythe United States and the effectiveness of the remainder of the amendmentsor the application thereof shall not be affected."

Subsection (a) is set out above as amendedin 1990 Haw. Sess. Laws, Act 150, § 8. The federal act referred toin the omitted reference had not been passed by the United States Congressat the time this amendment was enacted.

1993 Haw. Sess. Laws, Act 147, §1, in the first sentence of the fourth undesignated paragraph of subsection(a), inserted "to" preceding "the previous lessee".The word was not underscored as new material, but has been set out aboveas the latest expression of legislative intent.

1993 Haw. Sess. Laws, Act 147, §2 provides: "The provisions of this amendment are declared to be severableand, if any section, sentence, clause, or phrase or the application thereofto any person or circumstances is held ineffective because there is a requirementof having the consent of the United States to take effect, then, that portiononly shall take effect upon the granting of consent by the United Statesand the effectiveness of the remainder of this amendment or the applicationthereof shall not be affected."

1994 Haw. Sess. Laws, Act 37, § 3,provides that the Act shall take effect upon approval by the governor ofthe State of Hawaii with the consent of the United States Congress. TheAct was approved April 28, 1994.

The 1990 amendment, effectiveJune 15, 1990, added the language beginning "or under Section"in the third sentence of subsection (a).

The 1992 amendment, effective May27, 1992, at the end of the third sentence of the first paragraph of subsection(a) of § 209 substituted "under section 3 of the Act of July9, 1952 (66 Stat. 511, 513)." for "under section of the Act of( Stat. , )."

The 1993 amendment, effective May21, 1993, in subsection (a), added "father and mother," following"native Hawaiian," in the second sentence of the first paragraph;added paragraph (3); in the first sentence of the third paragraph, deleted"or" following "husband, wife,"; added ", or relative"preceding "qualified to be a lessee"; and made minor changesin punctuation and style.

The 1994 amendments. - 1994 Haw.Sess. Laws, Act. 37, § 1, effective April 28, 1994 (pending consentby the United States Congress), in the first paragraph of subsection (a),the second sentence, clause (1), substituted "children, or grandchildren"for "or children" and in clause (2) deleted "grandchildren,"following "children"; in the second paragraph of subsection (a),added present subparagraph (3), redesignated former subparagraph (3) assubparagraph (4), and in present subparagraph (4), substituted "child,or grandchild" for "or child"; deleted "grandchildren,"following "children," and in the third paragraph of subsection(a), inserted "grandchildren," following "children,".

1994 Haw. Sess. Laws, Act 109, §1, effective June 8, 1994, deleted the former last paragraph of subsection(a) regarding appraisals; added subsections (b) and (c); redesignated formersubsections (b) and (c) as present subsections (d) and (e); in subsection(d), substituted "may" for "is authorized to", inserted"native" following "qualified", and substituted "thatperson" for "the qualified Hawaiian"; and made nonsubstantivechanges throughout the section.

CASE NOTES

Private agreement cannot alter statutoryprovisions. - Under paragraph (1), a lessee of the department has theright to change the successor designated from among his relatives specifiedtherein at any time. The designated successor's interest in the leasedland vests only upon the lessee's death. A private agreement cannot altersuch statutory provisions. Kahalewai v. Rodrigues, 4 Haw. App. 446, 667P.2d 839, reconsideration denied, 4 Haw. App. 674 (1983).

Cited in Naliielua v. Hawaii, 795F. Supp. 1015 (D. Haw. 1991).

OPINIONS OF ATTORNEY GENERAL

Commission is vested with broad discretionunder this section to consider the qualifications of the persons representingthe classes of relatives of the deceased lessee, as named for purposesof succession in the statute, and to select therefrom that person who,in the judgment of the commission, is most qualified for the purpose ofsuccession to perform the conditions of the lease under the statute. Op.Att'y Gen. No. 61-75 (1961).

Common-law wife. - Since common-lawmarriages contracted in Hawaii are void under the state statutes, wherea husband and wife were divorced in Hawaii but later reconciled and livedtogether ostensibly as husband and wife until the husband died, the womanwas not the wife of the man under Hawaiian law, was not a "wife"under paragraph (1), and was not a qualified successor to the man's Hawaiianhome lands homestead. Op. Att'y Gen. No. 73-5 (1973).

Children. - It is necessary tolook to the Hawaii law of descent and distribution in order to define "children"as used in paragraph (1). Op. Att'y Gen. No. 73-18 (1973).

Stepchildren are not included in the meaningof the word "children" as used in paragraph (1), since neitherthe Hawaiian Homes Commission Act nor the Hawaii law of descent and distributionspecifically provides for stepchildren. Op. Att'y Gen. No. 73-18 (1973).

A legally adopted child is not automaticallya "native Hawaiian" as defined in § 201(a)(7) and must stillestablish himself by sufficient documentation as a "native Hawaiian"qualified to be a lessee under paragraph (1) of this section. Op. Att'yGen. No. 73-18 (1973).

Illegitimate children are included inthe meaning of the word children as used in paragraph (1) only when thenatural mother is the lessee and are not included as the lessee's "children"when the natural father is the lessee unless he has legitimized their childrenborn out of wedlock. Op. Att'y Gen. No. 73-18 (1973).

Hanai children are not included withinthe meaning of "children" as used in paragraph (1). Op. Att'yGen. No. 73-18 (1973).

Value of crops. - Under this section,a lessee surrendering a lease is entitled to payment from the commissionfor the appraised value of the improvements and the crops on the homesteadtract as of the date of surrender, less any indebtedness to the commission,or for taxes, or for any other indebtedness the payment of which has beenassured by the commission. Such payment ordinarily is made from the loanfund as an advance therefrom, which is reimbursable out of payments tobe made by the successor or successors to the tract involved. Op. Att'yGen. No. 61-66 (1961).

The Hawaiian homes commission could collectfrom company which marketed pineapples harvested and sold from crops plantedon three tracts of homestead lands to which the tenants had surrenderedtheir leases the net proceeds thereof, with a view to appraising the valueof the pineapple crops from each of the tracts in question and paying thatportion of the proceeds representing the appraised value of the crops foreach particular tract to dependents who had surrendered their leases. Op.Att'y Gen. No. 61-66 (1961).

§ 210. [Cancellation of leases.]

Whenever the department has reason tobelieve that any condition enumerated in section 208,or any provision of section 209, of this title hasbeen violated, the department shall give due notice and afford opportunityfor a hearing to the lessee of the tract in respect to which the allegedviolation relates or to the successor of the lessee's interest therein,as the case demands. If upon such hearing the department finds that thelessee or his successor has violated any condition in respect to the leasingof such tract, the department may declare his interest in the tract andall improvements thereon to be forfeited and the lease in respect theretocanceled, and shall thereupon order the tract to be vacated within a reasonabletime. The right to the use and occupancy of the Hawaiian home lands containedin such tract shall thereupon revest in the department and the departmentmay take possession of the tract and the improvements thereon.

[Am L 1963, c 207, § 2]

CASE NOTES

Waiver of right of forfeiture.- The commission, by receiving payment, waived its prior right of forfeitureand was compelled to institute a new proceeding if it desired to forfeita lease. Hawaiian Homes Comm'n v. Bush, 43 Haw. 281 (1959).

Purported cancellation held invalid.- The lessees were given an opportunity to be heard, but although theywere shown to be in default in failing to pay moneys advanced them by wayof loan, no action was taken to cancel the leases, but each of the lesseespromised to meet his obligation. Thereafter, without any notice to thelessees of further hearing, the leases were declared forfeited. This sectionwas not complied with in taking such an action, with the result that thepurported cancellation of the leaseholds was invalid. Hawaiian Homes Comm'nv. Bush, 43 Haw. 281 (1959).

§ 210.5. REPEALED. L 1987, c 36, §2.

Editor's Note. - This section wasenacted by 1981 Haw. Sess. Laws, Act 112, § 2, subject to consentof Congress, and repealed by 1987 Haw. Sess. Laws, Act 36, § 2.

§ 211. [Community pastures.]

The department shall, when practicable,provide from the Hawaiian home lands a community pasture adjacent to eachdistrict in which agricultural lands are leased, as authorized by the provisionsof section 207 of this title.

[Am L 1963, c 207, § 2]

§ 212. Lands returned to control of boardof land and natural resources.

The department may return any Hawaiianhome lands not leased as authorized by the provisions of section 207of this Act to the control of the board of land and natural resources.Any Hawaiian home lands so returned shall, until the department gives noticeas hereinafter in this section provided, resume and maintain the statusof public lands in accordance with the provisions of the Hawaii RevisedStatutes; provided that such lands may not be sold, leased, set aside,used, transferred or otherwise disposed of except under a general leaseonly. Any lease by the board of land and natural resources hereafter enteredinto shall contain a withdrawal clause, and the lands so leased shall bewithdrawn by the board, for the purpose of this Act, upon the departmentgiving at its option, not less than one nor more than five years' noticeof such withdrawal; provided, that the minimum withdrawal-notice periodshall be specifically stated in such lease. Each such lease, whether ornot stipulated therein, shall be deemed subject to the right and duty ofthe board of land and natural resources to terminate the lease and returnthe lands to the department whenever the department gives notice to theboard that the department is of the opinion that the lands are required.

Notwithstanding the provisions of section171-95, Hawaii Revised Statutes, in the leasing of Hawaiian home landsby the board to a public utility or other governmental agency, where suchuse directly benefits the department of Hawaiian home lands or the homesteadlessees, the rental may be nominal; in all other instances, the lease rentalshall be no less than the value determined in accordance with section 171-17(b),Hawaii Revised Statutes.

Any general lease of Hawaiian home landshereafter entered into by the board shall be void unless prior to the dispositionof such lease by public auction, direct negotiation or otherwise, approvalshall be obtained from the department of Hawaiian home lands.

[Am L 1963, c 207, §§ 2, 5(b);am Const Con 1978 and election Nov. 7, 1978]

Cross References. - As to notice,see § 204 of the Hawaiian Homes Commission Act.

CASE NOTES

Cited in Hawaii ex rel. Att'y Gen.ex rel. Dep't of Hawaiian Home Lands v. United States, 676 F. Supp. 1024(D. Haw. 1988); Ahia v. DOT, 69 Haw. 538, 751 P.2d 81 (1988).

OPINIONS OF ATTORNEY GENERAL

Executive order. - The dispositionof lands returned by the Hawaii homes commission has been restricted inthis section to disposition "under a general lease only," andthere is no authorization for disposition by executive order of the governor.Op. Att'y Gen. No. 75-3 (1975).

An executive order in 1955 purportingto set aside Hawaii home lands for a park pursuant to the Organic Act,§ 73(q), need not be withdrawn under § 171-11, because the executiveorder is invalid and of no effect under this section and § 206.Op. Att'y Gen. No. 75-3 (1975).

§ 213. Funds and accounts.

(a) There are established in the treasuryof the State two revolving funds, to be known respectively as the Hawaiianhome loan fund and the Hawaiian home general loan fund.

(b) Hawaiian home loan fund. The moneysin this fund shall be available for the purposes enumerated in section214 and for payments provided in section 209and shall not be expended for any other purpose except as provided in subsection(e). Any interest or other earnings arising out of investments from thisfund shall be credited to and deposited into the Hawaiian home operatingfund.

(c) Hawaiian home general loan fund. Moneysappropriated by the legislature for the construction of homes but not otherwiseset aside for a particular fund, for construction of replacement homes,for home repairs or additions, or for the development and operation ofa farm, ranch, or aquaculture operation; moneys transferred from otherfunds; and installments of principal paid by the lessees upon loans madeto them from this fund, or as payments representing reimbursements on accountof advances, but not including interest on such loans or advances, shallbe deposited into this fund. The moneys in the fund shall be used for purposesenumerated in section 214 and for payments providedin section 209; provided that, in addition to theconditions enumerated in section 215, farm loansshall be subject to the following conditions:

(1) To be eligible for a farm loanthe applicant shall derive, or present an acceptable plan to derive, amajor portion of the applicant's income from farming;

(2) Farm loans made for the purposeof soil and water conservation shall not exceed $20,000 and shall be fora term not to exceed ten years;

(3) Subsidies and grants or cost-sharingfunds entitled and received by the lessee for soil and water conservationpurposes shall be assigned to the department for the repayment of the outstandingfarm indebtedness; and

(4) The lessee shall carry out recommendedfarm management practices approved by a qualified agricultural agency.The department may create an account within this fund to support the guaranteeof repayment of loans made by government agencies or private lending institutionsto a holder of a lease under section 207(a) orlicense issued under section 207(c)(1)(B).

The department may create an account withinthis fund for moneys borrowed from government agencies or private lendinginstitutions to be used for any of the purposes enumerated in section 214.Installments of principal and that part of the interest equal to the interestcharged to the department by the lender paid by the lessees on the loansmade to them from this account shall be deposited into the same account.Any additional interest or other earnings arising out of investments fromthis account shall be credited to and deposited into the Hawaiian homereceipts fund.

(d) There are established in the treasuryof the State five special funds, to be known respectively as the Hawaiianhome operating fund, the Hawaiian home administration account, the Hawaiianhome receipts fund, the Hawaiian home trust fund, and the native Hawaiianrehabilitation fund.

(e) Hawaiian home operating fund. Theinterest transferred from the Hawaiian home loan fund, all moneys receivedby the department from any other source, and moneys transferred from theHawaiian home receipts fund, shall be deposited into the Hawaiian homeoperating fund. The moneys in this fund, without the prior written approvalof the governor, shall be available:

(1) For construction and reconstructionof revenue-producing improvements intended to serve principally occupantsof Hawaiian home lands, including acquisition or lease therefor of realproperty and interests therein, such as water rights or other interests;

(2) For payment into the treasury of theState of such amounts as are necessary to meet the interest and principalcharges for state bonds issued for such revenue-producing improvements;

(3) For operation and maintenance of suchimprovements constructed from such funds or other funds;

(4) For the purchase of water or otherutilities, goods, commodities, supplies, or equipment needed for services,or to be resold, rented, or furnished on a charge basis to occupants ofHawaiian home lands; and

(5) For appraisals, studies, consultants(including architects and engineers), or any other staff services includingthose in section 202(b) required to plan, implement,develop, or operate these projects.

The moneys in this fund may be supplementedby other funds available for or appropriated by the legislature for thesame purposes. In addition to such moneys, this fund, with the approvalof the governor, may be supplemented by transfers, made on a loan basisfrom the Hawaiian home loan fund for a period not exceeding ten years;provided that the aggregate amount of such transfers outstanding at anyone time shall not exceed $500,000.

In addition, moneys of this fund shallbe made available with the prior written approval of the governor for offsiteimprovements and development necessary to serve present and future occupantsof Hawaiian home lands; for improvements, additions, and repairs to allassets owned or leased by the department excluding structures or improvementsthat the department is obligated to acquire under section 209;for engineering, architectural, and planning services to maintain and developproperties; for such consultant services as may be contracted for underthis Act; for purchase or lease of necessary equipment; for acquisitionor lease of real property and interest therein; and for improvements constructedfor the benefit of beneficiaries of this Act and not otherwise permittedin the various loan funds or the administration account.

(f) Hawaiian home administration account.The entire receipts derived from any leasing or other disposition of theavailable lands pursuant to section 204(2) andtransfers from the Hawaiian home receipts fund shall be deposited intothis account. Any interest or other earnings arising out of investmentsfrom this fund shall be credited to and deposited into this fund. The moneysin this account shall be expended by the department for salaries and otheradministration expenses of the department in conformity with general lawapplicable to all departments of the State, and no sums shall be expendedfor structures and other permanent improvements. This account shall besubject to the following conditions and requirements:

(1) The department, when required by the governor but not later thanNovember 15 preceding each regular session of the legislature, shall submitto the state director of finance its budget estimates of expenditures forthe next fiscal period in the manner required by general law;

(2) The department's budget as approved by the governor shall be includedin the governor's budget report and shall be transmitted to the legislaturefor its approval;

(3) Upon legislative approval of a budget, the amount appropriated shallbe made available to the department. If no budget is approved by the legislatureprior to its adjournment, sums accruing to this account shall not be expendedfor any other purpose but shall remain available for future use. Any amountin this account which is in excess of the amount approved by the legislatureor made available for the fiscal period may be transferred to the Hawaiianhome operating fund.

(g) Hawaiian home receipts fund. All interest moneys from loans or investmentsreceived by the department from any fund except as provided for in eachrespective fund, shall be deposited into this fund. At the end of eachquarter, all moneys in this fund may be transferred to the Hawaiian homeoperating fund, the Hawaiian home administration account, the Hawaiianhome trust fund, and any loan fund in accordance with rules adopted bythe department.

(h) Hawaiian home trust fund. Except for gifts, bequests, and othermoneys given for designated purposes, moneys deposited into this fund shallbe available for transfers into any other fund or account authorized bythe Act or for any public purpose deemed by the commission to further thepurposes of the Act. Public purpose, as used herein, includes the formationof an account within the Hawaiian home trust fund as a reserve for loansinsured or guaranteed by the Federal Housing Administration, Departmentof Veterans Affairs, or any other federal agency and their respective successorsand assigns, which are authorized to insure or guarantee loans. Notwithstandingany other law to the contrary, the department is expressly authorized todeposit the reserve for loans in any duly organized bank in the State orelsewhere in the United States with automatic fund transfer capabilitiesand at such reserve amounts as shall be reasonably required by the federalagencies as a condition for participation in their respective insuranceor guarantee programs.

(i) Native Hawaiian rehabilitation fund. Pursuant to Article XII, Section1, of the State Constitution, thirty per cent of the state receipts, derivedfrom lands previously cultivated as sugarcane lands under any other provisionof law and from water licenses, shall be deposited into this fund. Thedepartment shall use this money solely for the rehabilitation of nativeHawaiians which shall include, but not be limited to, the educational,economic, political, social, and cultural processes by which the generalwelfare and conditions of native Hawaiians are thereby improved and perpetuated.

Any payment of principal, interest, orother earnings arising out of the loan or investment of money from thisfund shall be credited to and deposited into this fund.

Sections 214, 215,216, and 217 shall not applyto administration of this fund. The department is authorized to adopt rulesunder chapter 91 necessary to administer and carry out the purposes ofthis fund.

[Am Feb. 3, 1923, c 56, § 2, 42 Stat1222; Mar. 7, 1928, c 142, § 2, 45 Stat 246; Nov. 26, 1941, c 544,§ 4, 55 Stat 784; Jun. 14, 1948, c 464, § 3, 62 Stat 390; Jul.9, 1952, c 615, §§ 1, 2, 66 Stat 514; Aug. 21, 1958, Pub L 85-708,72 Stat 705; am L 1959 1st, c 13, § 2; am L 1961, c 183, § 2;am L 1963, c 114, § 5 and c 207, §§ 2, 5(a); am L 1965,c 4, §§ 1, 2; am L 1967, c 146, § 3; am L 1969, c 114, §1 and c 259, § 1; am L 1972, c 76, § 1; am L 1973, c 130, §1 and c 220, § 1; am L 1974, c 170, § 1, c 172, § 1, c 174,§ 1, c 175, §§ 2, 3 and c 176, § 2; am L 1976, c 72,§ 1; am L 1978, c 229, § 1; am Const Con 1978 and election Nov.7, 1978; am L 1981, c 90, § 4, c 158, § 1, c 192, § 1 andc 203, § 1; am L 1982, c 274, § 2; am L 1983, c 143, § 1;am L 1984, c 260, § 2; am L 1985, c 284, § 2; am L 1986, c 249,§ 2; am L 1987, c 36, § 4; am L 1993, c 145, § 1; am L 1994,c 152, § 2]

Subsection (f) Set Out Twice. -The first version of subsection (f) set out above is effective until July1, 1995. The second version of subsection (f) is reenacted effective July1, 1995.

Editor's note. - 1994 Haw. Sess.Laws, Act 152, § 6, which amended subsection (f), provided: "ThisAct shall take effect on July 1, 1994; provided that on July 1, 1995, section2 of this Act shall be repealed, and section 213, Hawaiian Homes CommissionAct, 1920, is reenacted in the form in which it read on the day beforethe approval of this Act.

The 1993 amendment, effective May21, 1993, rewrote this section.

The 1994 amendment, effective July1, 1994 and repealed effective July 1, 1995, in subsection (f), added thelanguage in the second sentence beginning "and any amounts recovered"and ending "units 3 and 4" preceding "shall be creditedto"; and added language following subparagraph (f)(3).

OPINIONS OF ATTORNEY GENERAL

This section did not authorize the subsidizingof nursery schools by the Hawaiian home commission from the Hawaiian homeoperating fund. Op. Att'y Gen. No. 62-6 (1962).

RESEARCH REFERENCES

Hawaii Legal Reporter.
As to amendment information sheet, see 78-2 Haw. Legal Rep. 78-659.

[§ 213.5]. Establishment of special fund.

A separate special fund of the departmentshall be established for each undertaking or part thereof financed fromthe proceeds of revenue bonds equally secured. Each fund shall be designated"department of Hawaiian home lands revenue bond special fund"and bear any additional designation the department deems appropriate toproperly identify the fund. Any law to the contrary notwithstanding, includingany provision of this Act, from and after the issuance of revenue bondsunder and pursuant to the provisions of this Act and part III of chapter39, Hawaii Revised Statutes, to finance an undertaking, all rentals, income,receipts, and other revenues derived by the department from the particularundertaking for which financing is undertaken shall be paid into the specialfund established pursuant to this Act and applied in the manner and forthe purposes set forth in part III of chapter 39, Hawaii Revised Statutes,and the proceedings authorizing the issuance of revenue bonds.

[L 1989, c 283, § 2]

Effective date. - This sectionbecame effective June 9, 1989.

[§ 213.6]. Hawaiian home lands trust fund.

There is established in the treasury ofthe State a trust fund to be known as the Hawaiian home lands trust fund,into which shall be deposited all appropriations by the State legislaturespecified to be deposited therein. Moneys of the Hawaiian home lands trustfund shall be expended by the department as provided by law upon approvalby the commission and shall be used for capital improvements and otherpurposes undertaken in furtherance of the Act. The department shall havefiduciary responsibility toward the trust fund, and shall provide annualreports therefor to the legislature and to the beneficiaries of the trust.Any interest or other earnings arising out of investments from the trustfund shall be credited to and deposited into the trust fund.

[L Sp 1995, c 14, § 7]

Editor's Note. - 1995 Sp. Sess.Laws, Act 14 provided for the verification and resolution of controversiesrelating to the Hawaiian home lands trust which arose between August 21,1959 and July 1, 1988 and of controversies relating to the validity ofpatents issued and affecting any lands covered by the HHCA. Section 6 ofthe Act provided for specific transfers of land and payments to satisfyclaims and controversies. Effective date. - This section became effectiveJune 29, 1995.

§ 214. Purposes of loans; authorized actions.

(a) The department may make loans fromrevolving funds to any lessee or native Hawaiian to whom, or any cooperativeassociation to which, a lease has been issued under section 207(a)of this Act or a license has been issued under section 207(c)(1)(B)of this Act. Such loans may be made for the following purposes:

(1) The repair or maintenance or purchaseor erection of dwellings on any tract, and the undertaking of other permanentimprovements thereon;

(2) The purchase of livestock, swine,poultry, fowl, aquaculture stock, and farm and aquaculture equipment;

(3) Otherwise assisting in the developmentof tracts and of farm, ranch, and aquaculture operations, including:

(A) The initial and on-going development,improvement, operation, and expansion of homestead farms, ranches, andaquaculture enterprises;

(B) The liquidation of indebtedness incurredfor any of the foregoing purposes relating to farm loans aged less thanfive years;

(D) The planning, layout, and installationof soil and water conservation practices; and

(E) Providing relief and rehabilitationto homestead farmers and ranchers due to damage by rain and windstorms,droughts, tidal wave, earthquake, volcanic eruption, and other naturalcatastrophes, and for livestock disease, epidemics, crop blights, and seriouseffects of prolonged shipping and dock strikes;

(4) The costof breaking up, planting, and cultivating land and harvesting crops, thecost of excavating or constructing aquaculture ponds and tanks, the purchaseof seeds, fertilizers, feeds, insecticides, medicines, and chemicals fordisease and pest control for animals, fish, shellfish, and crops, and therelated supplies required for farm, ranch, and aquaculture operations,the erection of fences and other permanent improvements for farm, ranch,and aquaculture purposes and the expense of marketing; and

(5) To assist licensees in the operationor erection of theaters, garages, service stations, markets, stores, andother mercantile establishments, all of which shall be owned by nativeHawaiians or by organizations formed and controlled by native Hawaiians.

(b) In addition the department may:

(1) Use moneys in the Hawaiian home operatingfund, with the prior approval of the governor, to match federal, state,or county funds available for the same purposes and to that end, enterinto such undertaking, agree to such conditions, transfer funds thereinavailable for such expenditure, and do and perform such other acts andthings, as may be necessary or required, as a condition to securing matchingfunds for such projects or works;

(2) Loan or guarantee the repayment ofor otherwise underwrite any authorized loan or portion thereof, up to amaximum of $50,000 to lessees in accordance with section 215;

(3) Loan or guarantee the repayment ofor otherwise underwrite any authorized loan or portion thereof to a cooperativeassociation in accordance with section 215;

(4) Permit and approve loans made to lessees by government agenciesor private lending institutions, where the department assures the paymentof such loans; provided that upon receipt of notice of default in the paymentof such assured loans, the department may, upon failure of the lessee tocure the default within sixty days, cancel the lease and pay the outstandingbalance in full or may permit the new lessee to assume the outstandingdebt; and provided further that the department shall reserve the followingrights: the right of succession to the lessee's interest and assumptionof the contract of loan; the right to require that written notice be givento the department immediately upon default or delinquency of the lessee;and any other rights enumerated at the time of assurance necessary to protectthe monetary and other interests of the department;

(5) Secure, pledge, or otherwise guaranteethe repayment of moneys borrowed by the department from government agenciesor private lending institutions and pay the interim interest or advancesrequired for loans; provided that the State's liability, contingent orotherwise, either on moneys borrowed by the department or on departmentalguarantees of loans made to lessees under this paragraph and paragraphs(2), (3), and (4) of this subsection, shall at no time exceed $21,000,000;the department's guarantee of repayment shall be adequate security fora loan under any state law prescribing the nature, amount, or form of securityor requiring security upon which loans may be made;

(6) Use available loan fund moneys orother funds specifically available for such purposes as cash guaranteeswhen required by lending agencies;

(7) Exercise the functions and reservedrights of a lender of money or mortgagee of residential property in alldirect loans made by government agencies or by private lending institutionsto lessees the repayment of which is assured by the department. The functionsand reserved rights shall include but not be limited to, the purchasing,repurchasing, servicing, selling, foreclosing, buying upon foreclosure,guaranteeing the repayment, or otherwise underwriting, of any loan, theprotecting of security interest, and after foreclosures, the repairing,renovating, or modernization and sale of property covered by the loan andmortgage;

(8) Pledge receivables of loan accountsoutstanding as collateral to secure loans made by government agencies orprivate lending institutions to the department, the proceeds of which shallbe used by the department to make new loans to lessees or to finance thedevelopment of available lands for purposes permitted by this Act; providedthat any loan agreement entered into under this paragraph by the departmentshall include a provision that the money borrowed by the department isnot secured directly or indirectly by the full faith and credit or thegeneral credit of the State or by any revenues or taxes of the State otherthan the receivables specifically pledged to repay the loan; provided furtherthat in making loans or developing available lands out of money borrowedunder this paragraph, the department may establish, revise, charge, andcollect fees, premiums, and charges as necessary, reasonable, or convenient,to assure repayment of the funds borrowed, and the fees, premiums, andcharges shall be deposited into the Hawaiian home trust fund; and providedfurther that no moneys of the Hawaiian home loan fund may be pledged assecurity under this paragraph; and

(9) Notwithstanding any other provisionsof this Act to the contrary, transfer into the Hawaiian home trust fundany available and unpledged moneys from any loan funds, the Hawaiian loanguarantee fund, or any fund or account succeeding thereto, except the Hawaiianhome loan fund, for use as cash guarantees or reserves when required bya federal agency authorized to insure or guarantee loans to lessees.

[Am L 1962, c 14, § 3; am L 1963,c 207, § 2; am L 1969, c 259, § 2; am L 1972, c 76, § 2;am L 1978, c 229, § 2; am L 1979, c 209, § 2; am L 1981, c 90,§ 5 and c 203, § 2; am L 1986, c 85, § 1 and c 249, §3; am L 1987, c 283, § 1]

§ 215. Conditions of loans.

Except as otherwise provided in section213(a)(5), each contract of loan with the lesseeor any successor or successors to his interest in the tract or with anyagricultural, mercantile, or aquacultural cooperative association composedentirely of lessees shall be held subject to the following conditions whetheror not stipulated in the contract loan:

(1) At any one time, the outstanding amountof loans made to any lessee, or successor or successors in interest, forthe repair, maintenance, purchase, and erection of a dwelling and relatedpermanent improvements shall not exceed $50,000, for the development andoperation of a farm, ranch, or aquaculture operation shall not exceed $50,000,except that when loans are made to an agricultural or aquacultural cooperativeassociation for the purposes stated in section 214(a)(4),the loan limit shall be determined by the department on the basis of theproposed operations and the available security of the association, andfor the development and operation of a mercantile establishment shall notexceed the loan limit determined by the department on the basis of theproposed operations and the available security of the lessee or of theorganization formed and controlled by lessees; provided that upon the deathof a lessee leaving no relative qualified to be a lessee of Hawaiian homelands, or the cancellation of a lease by the department, or the surrenderof a lease by the lessee, the department shall make the payment providedfor by section 209(a), the amount of any such paymentmade to the legal representative of the deceased lessee, or to the previouslessee, as the case may be, shall be considered as part or all, as thecase may be, of any such loan to the successor or successors, without limitationas to the above maximum amounts; provided further that in case of the deathof a lessee, or cancellation of a lease by the department, or the surrenderof a lease by the lessee, the successor or successors to the tract shallassume any outstanding loan or loans thereon, if any, without limitationas to the above maximum amounts but subject to paragraph (3).

(2) The loans shall be repaid in periodicinstallments, such installments to be monthly, quarterly, semiannual, orannual as may be determined by the department in each case. The term ofany loan shall not exceed thirty years. Payments of any sum in additionto the required installments, or payment of the entire amount of the loan,may be made at any time within the term of the loan. All unpaid balancesof principal shall bear interest at the rate of two and one-half per centa year for loans made directly from the Hawaiian home loan fund, or atthe rate of two and one-half per cent or higher as established by law forother loans, payable periodically or upon demand by the department, asthe department may determine. The payment of any installment due shallbe postponed in whole or in part by the department for such reasons asit deems good and sufficient and until such later date as it deems advisable.Such postponed payments shall continue to bear interest on the unpaid principalat the rate established for the loan.

(3) In the case of the death of a lesseethe department shall, in any case, permit the successor or successors tothe tract to assume the contract of loan subject to paragraph (1). In caseof the cancellation of a lease by the department or the surrender of alease by the lessee, the department may, at its option declare all installmentsupon the loan immediately due and payable, or permit the successor or successorsto the tract to assume the contract of loan subject to paragraph (1). Thedepartment may, in such cases where the successor or successors to thetract assume the contract of loan, waive the payment, wholly or in part,of interest already due and delinquent upon the loan, or postpone the paymentof any installment thereon, wholly or in part, until such later dates asit deems advisable. Such postponed payments shall, however, continue tobear interest on the unpaid principal at the rate established for the loan.Further, the department may, if it deems it advisable and for the bestinterests of the lessees, write off and cancel, wholly or in part, thecontract of loan of the deceased lessee, or previous lessee, as the casemay be, where such loans are delinquent and deemed uncollectible. Suchwrite off and cancellation shall be made only after an appraisal of allimprovements and growing crops or improvements and aquaculture stock, asthe case may be, on the tract involved, such appraisal to be made in themanner and as provided for by section 210.5. Inevery case, the amount of such appraisal, or any part thereof, shall beconsidered as part or all, as the case may be, of any loan to such successoror successors, subject to paragraph (1).

(4) No part of the moneys loaned shallbe devoted to any purpose other than those for which the loan is made.

(5) The borrower or the successor to hisinterest shall comply with such other conditions, not in conflict withany provision of this Act, as the department may stipulate in the contractof loan.

(6) The borrower or the successor to hisinterest shall comply with the conditions enumerated in section 208,and with section 209 of this Act in respect to thelease of any tract.

(7) Whenever the department shall determinethat a borrower is delinquent in the payment of any indebtedness to thedepartment, it may require such borrower to execute an assignment to it,not to exceed, however, the amount of the total indebtedness of such borrower,including the indebtedness to others the payment of which has been assuredby the department of all moneys due or to become due to such borrower byreason of any agreement or contract, collective or otherwise, to whichthe borrower is a party. Failure to execute such an assignment when requestedby the department shall be sufficient ground for cancellation of the borrower'slease or interest therein.

[Am Feb. 3, 1923, c 56, § 3, 42 Stat1222; Jul. 10, 1937, c 482, 50 Stat 505; Nov. 26, 1941, c 544, § 5,55 Stat 785; Jun. 14, 1948, c 464, §§ 4, 5, 62 Stat 392; Jul.9, 1952, c 615, §§ 3, 4, 66 Stat 514; am L 1962, c 14, §4 and c 18, § 2; am L 1963, c 207, §§ 2, 3; am L 1968, c29, § 2; am L 1972, c 76, § 3; am L 1974, c 173, § 1; amL 1976, c 72, § 2; am L 1981, c 90, § 6 and c 203, § 3;am L 1982, c 274, § 3]

Editor's Note. - The amendmentsto this section by 1981 Haw. Sess. Laws, Act 112, § 3, which weresubject to consent of Congress, were repealed by 1987 Haw. Sess. Laws,Act 36, § 2.

§ 216. Insurance by borrowers; accelerationof loans; lien and enforcement thereof.

(a) The department may require theborrower to insure, in such amount as the department may prescribe, anylivestock, aquaculture stock, swine, poultry, fowl, machinery, equipment,dwellings, and permanent improvements purchased or constructed out of anymoneys loaned or assured by the department; or, in lieu thereof, the departmentmay directly take out such insurance and add the cost thereof to the amountof principal payable under the loan. (b) Whenever the department has reasonto believe that the borrower has violated any condition enumerated in paragraph(2), (4), (5), or (6) of section 215 of this Act, the department shallgive due notice and afford opportunity for a hearing to the borrower orthe successor or successors to his interest, as the case demands. If uponsuch hearing the department finds that the borrower has violated the condition,the department may declare all principal and interest of the loan immediatelydue and payable notwithstanding any provision in the contract of loan tothe contrary. (c) The department shall have a first lien upon the borrower'sor lessee's interest in any lease, growing crops, aquacultural stock, eitheron his tract or share in any collective contract or program, livestock,swine, poultry, fowl, aquaculture stock, machinery, and equipment purchasedwith moneys loaned by the department, and in any dwellings or other permanentimprovements on any leasehold tract, to the amount of all principal andinterest due and unpaid and of all taxes and insurance and improvementspaid by the department, and any other indebtedness of the borrower, thepayment of which has been assured by the department. Such lien shall havepriority over any other obligation for which the property subject to thelien may be security. (d) The department may, subject to this Act and proceduresestablished by rule, enforce any lien by declaring the borrower's interestin the property subject to the lien to be forfeited, any lease held bythe borrower canceled, and shall thereupon order such leasehold premisesvacated and the property subject to the lien surrendered within a reasonabletime. The right to the use and occupancy of the Hawaiian home lands containedin such lease shall thereupon revest in the department, and the departmentmay take possession of the premises covered therein and the improvementsand growing crops or improvements and aquaculture stock thereon; providedthat the department shall pay to the borrower any difference which maybe due him after the appraisal provided for in section 209 has been made.

[Am Jul. 10, 1937, c 482, 50 Stat 506;Jun. 14, 1948, c 464, § 6, 62 Stat 393; am L 1962, c 14, § 5;am L 1963, c 207, § 2; am L 1967, c 146, § 4; am L 1978, c 229,§ 3; am L 1981, c 90, § 7]

CASE NOTES

Cited in Yuen v. Kimikaua, 37 Haw.8 (1944).

OPINIONS OF ATTORNEY GENERAL

The power of first lien cannot be waived.Op. Att'y Gen. No. 60-85 (1960).

§ 217. [Ejectment, when: loan to new lesseefor improvements.]

In case the lessee or borrower or the successor to his interest in thetract, as the case may be, fails to comply with any order issued by thedepartment under the provisions of section 210 or216 of this title, the department may (1) bring actionof ejectment or other appropriate proceedings, or (2) invoke the aid ofthe circuit court of the State for the judicial circuit in which the tractdesignated in the department's order is situated. Such court may thereuponorder the lessee or his successor to comply with the order of the department.Any failure to obey the order of the court may be punished by it as contemptthereof. Any tract forfeited under the provisions of section 210or 216 of this title may be again leased by the departmentas authorized by the provisions of section 207 ofthis title, except that the value, in the opinion of the department, ofall improvements made in respect to such tract by the original lessee orany successor to his interest therein shall constitute a loan by the departmentto the new lessee. Such loan shall be subject to the provisions of thissection and sections 215, except paragraph (1), and216 to the same extent as loans made by the departmentfrom the Hawaiian loan fund.

[Am L 1963, c 207, §§ 2, 5(a)]

CASE NOTES

Seizure of property. - This sectioncannot be construed to authorize the seizure of a lessee's property withoutservice of a summons, time to answer, and an opportunity to present evidenceand be heard in opposition to the relief requested. In re Smith, 68 Haw.466, 719 P.2d 397 (1986).

§ 218. Repealed. L 1967, c 146, § 5.

§ 219. Agricultural and aquacultural experts.

The department is authorized to employagricultural and aquacultural experts at such compensation and in suchnumber as it deems necessary. It shall be the duty of such agriculturaland aquacultural experts to instruct and advise the lessee of any tractor the successor to the lessee's interest therein as to the best methodsof diversified farming and stock raising and aquaculture operations andsuch other matters as will tend successfully to accomplish the purposesof this title.

[Am L 1963, c 207, § 2; am L 1981,c 90, § 8; am L 1982, c 275, § 1]

OPINIONS OF ATTORNEY GENERAL

As to classification of employees of Hawaiianhomes commission, see Op. Att'y Gen. No. 59-80 (1959).

§ 219.1. General assistance.

(a) The department is authorized to carryon any activities it deems necessary to assist the lessees in obtainingmaximum utilization of the leased lands, including taking any steps necessaryto develop these lands for their highest and best use commensurate withthe purposes for which the land is being leased as provided for in section207, and assisting the lessees in all phases of farming, ranching, andaquaculture operations and the marketing of their agricultural or aquaculturalproduce and livestock.

(b) Notwithstanding any law to the contrary,the department either alone or together with any other governmental agency,may:

(1) Form an insurance company, association(nonprofit or otherwise), pool, or trust;

(2) Acquire an existing insurance company;

(3) Enter into arrangements with one ormore insurance companies; or

(4) Undertake any combination of the foregoing;upon such terms and conditions and for such periods, as the commissionshall approve, to provide homeowner protection, including hurricane coverage,for lessees participating in such undertaking. Such undertaking shall besubject to the provisions of chapter 431P, including but not limited to§ 431P-10(b), and chapter 431.

(1) Issue revenue bonds under and pursuantto part III of chapter 39, Hawaii Revised Statutes, to establish necessaryreserves to provide for the payment of claims in excess of reserves andfor other related purposes; or to pay any liability incurred that is self-insuredor uninsured by the commission including without limitations, liabilitiesfor damage to property, comprehensive liability, environmental, or otherlosses; and

(2) Invest funds held in reserve, whichare not required for immediate disbursement, in property or securitiesin which savings banks may legally invest funds subject to their controlor as the commission may authorize by resolution.

[L 1962, c 14, § 6; am imp L 1963,c 207, § 2; am L 1981, c 90, § 9; am L 1993, c 339, § 7]

Editor's Note. - 1993 Haw. Sess.Laws, Act 339, § 7, near the end of subsection (a) substituted "of"for "or" preceding "aquacultural produce." Since thechange was neither bracketed nor underlined on the 1993 act, the changehas not been set out above.

The 1993 amendment, effective June30, 1993, designated subsection (a), and added subsections (b) and (c).

§ 220. Development projects; appropriationsby legislature; bonds issued by legislature; mandatory reservation of water.

(a) Subject to subsection (d), the departmentis authorized directly to undertake and carry on general water and otherdevelopment projects in respect to Hawaiian home lands and to undertakeother activities having to do with the economic and social welfare of thehomesteaders, including the authority to derive revenue from the sale,to others than homesteaders, of water and other products of such projectsor activities, or from the enjoyment thereof by others than homesteaders,where such sale of products or enjoyment of projects or activities by othersdoes not interfere with the proper performance of the duties of the department;provided that roads through or over Hawaiian home lands, other than federal-aidhighways and roads, shall be maintained by the county in which the particularroad or roads to be maintained are located.

(b) The legislature is authorized to appropriateout of the treasury of the State such sums as it deems necessary to augmentthe funds of the department and to provide the department with funds sufficientto execute and carry on such projects and activities. The legislature isfurther authorized to issue bonds to the extent required to yield the amountof any sums so appropriated for the payment of which, if issued for revenue-producingimprovements, the department shall provide, as set forth in section 213.

(c) To enable the construction of irrigationprojects which will service Hawaiian home lands, either exclusively orin conjunction with other lands served by such projects, the departmentis authorized, with the approval of the governor, and subject to subsection(d), to:

(1) Grant to the board of land and naturalresources, or to any other agency of the government of the State or theUnited States undertaking the construction and operation of such irrigationprojects, licenses for rights-of-way for pipelines, tunnels, ditches, flumes,and other water appurtenant to Hawaiian home lands;

(2) Exchange available lands for publiclands, as provided in section 204 of this Act, for sites for reservoirsand subsurface water development wells and shafts;

(3) Request any such irrigation agencyto organize irrigation projects for Hawaiian home lands and to transferirrigation facilities constructed by the department to any such irrigationagency;

(4) Agree to pay the tolls and assessmentsmade against community pastures for irrigation water supplied to such pastures;and

(5) Agree to pay the costs of constructionof projects constructed for Hawaiian home lands at the request of the department,in the event the assessments paid by the homesteaders upon lands are notsufficient to pay such costs; provided that licenses for rights-of-wayfor the purposes and in the manner specified in this section may be grantedfor a term of years longer than is required for amortization of the costsof the project or projects requiring use of such rights-of-way only ifauthority for such longer grant is approved by an act of the legislatureof the State. Such payments shall be made from, and be a charge againstthe Hawaiian home operating fund.

(d) For projects pursuant to this section,sufficient water shall be reserved for current and foreseeable domestic,stock water, aquaculture, and irrigation activities on tracts leased tonative Hawaiians pursuant to section 207(a).

[Am Jul. 10, 1937, c 482, 50 Stat 507;Nov. 26, 1941, c 544, § 6, 55 Stat 786; Jun. 14, 1948, c 464, §7, 62 Stat 393; Aug. 1, 1956, c 855, § 1, 70 Stat 915; am L 1963,c 207, §§ 2, 5(a); am L 1986, c 249, § 4; am L 1991, c 325,§ 2]

The 1991 amendment, effective July2, 1991, inserted "; mandatory reservation of water" in the catchline,in subsection (a) substituted "Subject to subsection (d), the"for "The," and deleted "or city and county" following"maintained by the county," inserted "and subject to subsection(d)," in the introductory paragraph of subsection (c), and added subsection(d).

Cross References. - As to bondissues, see § 55 of the Organic Act and Chapters 39, 47, and 49.

As to irrigation projects, see §§174-13, 173-14.

OPINIONS OF ATTORNEY GENERAL

Irrigation project. - The Hawaiianhomes commission had authority to enter into a contract guaranteeing thepayment of homesteaders' obligations for water charges in connection withan application for a federal loan under the Small Reclamation ProjectsAct for the construction of an irrigation project to serve land in theHawaiian Homes Hoolehua Homestead area and other lands in Molokai. Op.Att'y Gen. No. 61-22 (1961).

Liens. - Since a lien could conceivablyconstitute a disposition of Hawaiian home lands, which is not permittedby the Hawaiian Homes Commission Act, establishing such a lien as securityfor improvement bonds would not be legal. Op. Att'y Gen. No. 63-25 (1963).

As to classification of employees of Hawaiianhomes commission, see Op. Att'y Gen. No. 59-80 (1959).

§ 220.5. Development by contract; developmentby project developer agreement.

(a) Notwithstanding any law to thecontrary, the department is authorized to enter into and carry out contractsto develop available lands for homestead, commercial, and multipurposeprojects; provided that the department shall not be subject to the requirementsof competitive bidding if no state funds are to be used in the developmentof the project.

(b) Notwithstanding any law to the contrary,the department is authorized to enter into project developer agreementswith qualified developers for, or in connection with, any homestead, commercial,or multipurpose project, or portion of any project; provided that priorto entering into a project developer agreement with a developer, the departmentshall:

(1) Set by appraisal the minimum rentalof the lands to be disposed of on the basis of the fair market value ofthe lands;

(2) Give notice of the proposed dispositionin accordance with applicable procedures and requirements of section 171-60(a)(3),Hawaii Revised Statutes;

(3) Establish reasonable criteria forthe selection of the private developer; and

(4) Determine within forty-five days ofthe last day for filing applications the applicant or applicants who meetthe criteria for selection, and notify all applicants of its determinationwithin seven days of such determination. If only one applicant meets thecriteria for selection as the developer, the department then may negotiatethe details of the project developer agreement with the developer; providedthat the terms of the project developer agreement shall not be less thanthose proposed by the developer in the application. If two or more applicantsmeet the criteria for selection, the department shall consider all of therelevant facts of the disposition or contract, the proposals submittedby each applicant, and the experience and financial capability of eachapplicant and, within forty-five days from the date of selection of theapplicants that met the criteria, shall select the applicant who submittedthe best proposal. The department then may negotiate the details of thedisposition with the developer, including providing benefits to promotenative Hawaiian socio-economic advancement; provided that the terms ofthe project developer agreement shall not be less than those proposed bythe developer in the application.

(c) Any project developer agreement enteredinto pursuant to this section shall include the following terms and conditions,wherever appropriate:

(1) A requirement that the developer filewith the department a good and sufficient bond conditioned upon the fulland faithful performance of all the terms, covenants, and conditions ofthe project developer agreement;

(2) The use or uses to which the landwill be put;

(3) The dates on which the developer mustsubmit to the department for approval preliminary plans and final plansand specifications for the total development. No construction shall commenceuntil the department has approved the final plans and specifications; providedthat construction on an incremental basis may be permitted by the department;

(4) The date of completion of the totaldevelopment, including the date of completion of any permitted incrementaldevelopment;

(5) The minimum requirements for off-siteand on-site improvements that the developer must install, construct, andcomplete by the date of completion of the total development. The departmentmay permit incremental development and establish the minimum requirementsfor off-site and on-site improvements that must be installed, constructed,and completed prior to the date of completion of the total development;and

(6) Any other terms and conditions deemednecessary by the department to protect the interests of the State and thedepartment.

(d) Any project developer agreement enteredinto pursuant to this section may provide for options for renewal of theterm of the project developer agreement; provided that:

(1) The term of any one project developeragreement shall not exceed sixty-five years;

(2) Any lands disposed of under a projectdeveloper agreement shall be subject to withdrawal at any time during theterm of the agreement, with reasonable notice; and

(3) The rental shall be reduced in proportionto the value of the portion withdrawn and the developer shall be entitledto receive from the department the proportionate value of the developer'spermanent improvements so taken in the proportion that they bear to theunexpired term of the agreement, with the value of the permanent improvementsdetermined on the basis of fair market value or depreciated value, whicheveris less; or the developer, in the alternative, may remove and relocatethe developer's improvements to the remainder of the lands occupied bythe developer.

(e) The project developer agreement maypermit the developer, after the developer has completed construction ofany required off-site improvement, to assign or sublease with the department'sapproval portions of the leased lands in which the construction of anyrequired off-site improvement has been completed to a purchaser or sublesseewho shall assume the obligations of the developer relative to the parcelbeing assigned or subleased, including the construction of any on-siteimprovement. The department may permit a developer to share in the leaserent from the assigned lease for a fixed period in order to recover costsand profit.

(f) Whenever the department enters intoa project developer agreement to develop a homestead project, the departmentshall provide for the purchase of the completed project or that portionof a completed project developed for disposition to native Hawaiians, andshall dispose of the lands in accordance with this Act; provided that theproject developer agreement shall not encumber any existing homestead leasein the project area.

(g) As used in this section, the followingwords and terms shall have the following meanings unless the context indicatesanother or different meaning or intent:

"Commercial project" means aproject or that portion of a multipurpose project, including single-familyor multiple-family residential, agricultural, pastoral, aquacultural, industrial,business, hotel and resort, or other commercial uses designed and intendedto generate revenues as authorized by this Act;

"Developer" means any person,partnership, cooperative, firm, nonprofit or for-profit corporation, orpublic agency possessing the competence, expertise, experience, and resources,including financial, personal, and tangible resources, required to carryout a project;

"Homestead project" means aproject or that portion of a multipurpose project, including residential,agricultural, pastoral, or aquacultural uses designed and intended fordisposition to native Hawaiians under this Act; provided that this termshall also include community facilities for homestead areas;

"Multipurpose project" meansa combination of a commercial project and a homestead project;

"Project" means a specific undertakingto develop, construct, reconstruct, rehabilitate, renovate, or to otherwiseimprove or enhance land or real property;

"Project developer agreement"means any lease, sublease, conditional leasing agreement, disposition agreement,financing agreement, or other agreement or combination of agreement, enteredinto under this section by the department, for the purpose of developingone or more projects.

(h) The department is authorized to adoptrules in accordance with chapter 91, Hawaii Revised Statutes, to implementand carry out the purposes of this section.

[L 1986, c 84, § 1; am L 1993, c146, § 1] The 1993 amendment, effective May 21, 1993, in subsection(d), designated paragraphs (1), (2), and (3); added "with the valueof the permanent improvements determined on the basis of fair market valueor depreciated value, whichever is less;" to paragraph (3); and mademinor changes in punctuation and style.

§ 221. Water.

(a) When used in this section:

(1) The term "water license"means any license issued by the board of land and natural resources grantingto any person the right to the use of government-owned water; and

(2) The term "surplus water"means so much of any government-owned water covered by a water licenseor so much of any privately owned water as is in excess of the quantityrequired for the use of the licensee or owner, respectively.

(b) All water licenses issued after thepassage of this Act shall be deemed subject to the condition, whether ornot stipulated in the license, that the licensee shall, upon the demandof the department, grant to it the right to use, free of all charge, anywater which the department deems necessary adequately to supply the livestock,aquaculture operations, agriculture operations, or domestic needs of individualsupon any tract.

(c) In order adequately to supply livestock,the aquaculture operations, the agriculture operations, or the domesticneeds of individuals upon any tract, the department is authorized (1) touse, free of all charge, government-owned water not covered by any waterlicense or covered by a water license issued after the passage of thisAct or covered by a water license issued previous to the passage of thisAct but containing a reservation of such water for the benefit of the public,and (2) to contract with any person for the right to use or to acquire,under eminent domain proceedings similar, as near as may be, to the proceedingsprovided in respect to land by sections 101-10 to 101-34, Hawaii RevisedStatutes, the right to use any privately owned surplus water or any government-ownedsurplus water covered by a water license issued previous to the passageof this Act, but not containing a reservation of such water for the benefitof the public. Any such requirement shall be held to be for a public useand purpose. The department may institute the eminent domain proceedingsin its own name.

(d) The department is authorized, forthe additional purpose of adequately irrigating any tract, to use, freeof all charge, government-owned surplus water tributary to the Waimea riverupon the island of Kauai, not covered by a water license or covered bya water license issued after July 9, 1921. Any water license issued afterthat date and covering any such government-owned water shall be deemedsubject to the condition, whether or not stipulated therein, that the licenseeshall, upon the demand of the department, grant to it the right to use,free of all charge, any of the surplus water tributary to the Waimea riverupon the island of Kauai, which is covered by the license and which thedepartment deems necessary for the additional purpose of adequately irrigatingany tract. Any funds which may be appropriated by Congress as a grant-in-aidfor the construction of an irrigation and water utilization system on theisland of Molokai designed to serve Hawaiian home lands, and which arenot required to be reimbursed to the federal government, shall be deemedto be payment in advance by the department and lessees of the departmentof charges to be made to them for the construction of such system and shallbe credited against such charges when made.

(e) All rights conferred on the departmentby this section to use, contract for, or acquire the use of water shallbe deemed to include the right to use, contract for, or acquire the useof any ditch or pipeline constructed for the distribution and control ofsuch water and necessary to such use by the department.

(f ) Water systems in the exclusive controlof the department shall remain under its exclusive control; provided thatthe department may negotiate an agreement to provide for the maintenanceof the water system and the billing and collection of user fees. If anyprovision or the application of that provision is inconsistent with provisionscontained in this section, this section shall control.

Water systems include all real and personalproperty together with all improvements to such systems acquired or constructedby the department for the distribution and control of water for domesticor agricultural use.

[Am Aug. 1, 1956, c 855, §§2, 3, 70 Stat 915; am L 1963, c 207, §§ 2, 5(b); am Const Con1978 and election Nov. 7, 1978; am L 1981, c 90, § 10; am L 1984,c 36, § 1; am L 1990, c 24, § 1]

Editor's Note. - Section 2 of 1990Haw. Sess. Laws, Act 24, provides: "The provisions of this amendmentare declared to be severable and, if any section, sentence, clause, orphrase or the application thereof to any person or circumstances is heldineffective because there is a requirement of having the consent of theUnited States to take effect, then, that portion only shall take effectupon the granting of consent by the United States and the effectivenessof the remainder of this amendment or the application thereof shall notbe affected."

The 1990 amendment, effective April17, 1990, inserted "agriculture operations" in subsection (b),inserted "the agriculture operations" near the beginning of subsection(c), and inserted "or" preceding "acquire the use of water"in subsection (e).

Cross References. - As to powersof board of land and natural resources as to water and land development,see §§ 174-5 and 174-6.

RESEARCH REFERENCES

Hawaii Legal Reporter.
As to amendment information sheet, see 78-2 Haw. Legal Rep. 78-658.

As to amendment information sheet, see78-2 Haw. Legal Rep. 78-660.

§ 222. Administration.

(a) The department shall adopt rules andregulations and policies in accordance with chapter 91, Hawaii RevisedStatutes. The department may make such expenditures as are necessary forthe efficient execution of the functions vested in the department by thisAct. All expenditures of the department and all moneys necessary for loansmade by the department, in accordance with the provisions of this Act,shall be allowed and paid upon the presentation of itemized vouchers approvedby the chairman of the commission or the chairman's designated representative.The department shall make an annual report to the legislature of the Stateupon the first day of each regular session and such special reports asthe legislature may from time to time require. The chairman and membersof the commission shall give bond as required by law. The sureties uponthe bond and the conditions thereof shall be approved annually by the governor.

(b) When land originally leased by thedepartment is, in turn, subleased by the department's lessee or sublessee,the department shall submit, within ten days of the convening of any regularsession, a written report to the legislature which shall cover the subleasetransactions occurring in the calendar year prior to the regular sessionand shall contain the names of the persons involved in the transaction,the size of the area under lease, the purpose of the lease, the land classificationof the area under lease, the tax map key number, the lease rental, thereason for approval of the sublease by the department, and the estimatednet economic result accruing to the department, lessee and sublessee.

[Am Nov. 26, 1941, c 544, § 7, 55Stat 787; Jun. 14, 1948, c 464, § 8, 62 Stat 394; am L 1963, c 207,§ 4; am L 1972, c 173, § 1; am L 1977, c 174, § 2; am L1986, c 249, § 5]

§ 223. [Right of amendment, etc.]

The Congress of the United States reservesthe right to alter, amend, or repeal the provisions of this title.

Cross References. - As to adoptionof the Hawaiian Homes Commission Act as the law of the State, see Haw.Const., Art. XII, § 1.

CASE NOTES

State possesses legislative jurisdiction.- Although not exclusively held, the state does possess legislative jurisdictionwith respect to Hawaiian home lands, and these lands are "within thisstate" for the purpose of determining the territorial applicabilityof the criminal law. State v. Jim, 80 Haw. 168, 907 P.2d 754 (1995).

§ 224. Sanitation and reclamation expert.

The Secretary of the Interior shall designatefrom his Department someone experienced in sanitation, rehabilitation,and reclamation work to reside in the State and cooperate with the departmentin carrying out its duties. The salary of such official so designated bythe Secretary of the Interior shall be paid by the department while heis carrying on his duties in the State.

[Add Jul. 26, 1935, c 420, § 2, 49Stat 505; am imp L 1963, c 207, § 5(a); am L 1976, c 120, § 1]

§ 225. Investment of funds; disposition.

(a) The department shall have the powerand authority to invest and reinvest any of the moneys in any of its funds,not otherwise immediately needed for the purposes of the funds, in suchbonds and securities as authorized by state law for the investment of statesinking fund moneys.

(b) (1) The department may receive, manage,and invest moneys or other property, real, personal or mixed, or any interesttherein, which may be given, bequeathed, or devised, or in any manner receivedfrom sources other than the legislature or any federal appropriation, forthe purposes of the Act.

(2) All moneys received by or on behalfof the department shall be deposited into the state treasury to be expendedaccording to law and for purposes in accordance with the terms and conditionsof the gift. All moneys shall be appropriated for purposes enumerated insuch gifts and if no specific purpose is enumerated, shall be appropriatedto the Hawaiian home trust fund.

(3) The department is authorized to sell,lease, or in any way manage such real, personal, or mixed property or anyinterest therein, in the manner and for the purposes enumerated in thegift. If no conditions are enumerated, the gift may be sold, leased, managed,or disposed of and the income or proceeds therefrom shall be depositedinto the Hawaiian home trust fund.

(4) The real property or any interesttherein received by the department through contributions or grants shallnot attain the status of Hawaiian home lands as defined in section 201(a)(5).

(5) The department shall cause to be keptsuitable books of account wherein shall be recorded each gift, the essentialfacts of the management thereof, and the expenditure of income.

(6) Any action to be taken with respectto gifts shall be made in a public meeting where any pertinent informationand reasons for any decisions shall be fully disclosed.

[Add Nov. 26, 1941, c 544, § 8, 55Stat 787; Jun. 14, 1948, c 464, § 9, 62 Stat 394; am L 1963, c 207,§ 5(a); am L 1965, c 30, § 1; am L 1978, c 229, § 4; amL 1981, c 192, § 2; am L 1983, c 143, § 2]

§ 226. Qualification for federal programs.

The department shall be qualified to participatein any federal program that renders assistance in program areas that thedepartment is mandated by the Act to implement.

[L 1978, c 204, § 1]

Editor's Note. - This section wasenacted, subject to consent of Congress, by 1978 Haw. Sess. Laws, Act 204,§§ 1, 3.

Consent of Congress was given. See Pub.Law 99-557 (Oct. 27, 1986).

CASE NOTES

Cited in Kilauea Neighborhood Ass'nv. Land Use Comm'n, 7 Haw. App. 227, 751 P.2d 1031 (1988).

[§ 227]. Enterprise zones.

The department is authorized to participatein any federal or state program that permits the establishment of one ormore enterprise zones on available lands, provided that participation inthe program will result in economic benefits to native Hawaiians. The administrationof the program shall be governed by rules adopted by the department inaccordance with chapter 91, Hawaii Revised Statutes.

[L 1986, c 16, § 2]

Cross References. - As to stateenterprise zones, see Chapter 209E.

ARTICLE 3. Amendments To HawaiianOrganic Act.

[See the Organic Act.]

ARTICLE 4. Miscellaneous Provisions.

§ 401.

All Acts or parts of Acts, either of the Congressof the United States or of the State of Hawaii, to the extent that theyare inconsistent with the provisions of this Act, are hereby repealed.

§ 402.

If any provision of this Act, or the applicationof such provision to certain circumstances, is held unconstitutional, theremainder of the Act and the application of such provision to circumstancesother than those as to which it is held unconstitutional shall not be heldinvalidated thereby.

Editor's Note. - 1986 Haw. Sess.Laws, Act 75 enacted a new Title 5 of this act, entitled Homestead GeneralLeasing Program, consisting of §§ 501 to 516. Section 3 of Act75 makes new Title 5 effective upon the approval of the Governor with theconsent of the United States Congress.

ARTICLE 5. Homestead General LeasingProgram.

[Effective upon approval of Governor with consent of Congress]

§ 501. Definitions. [For effective datesee note.]

As used in this title if not inconsistentwith the context:

"Homestead general lease" meansa lease for residential, agricultural, pastoral, or aquacultural purposesissued under this title;

"Homestead general lessee" meansthe lessee under a homestead general lease and the successors in interestof the lessee.

[L 1986, c 75, pt of § 2]

Editor's Note. - Section 3 of 1986Haw. Sess. Laws, Act 75 provides that this title shall take effect uponthe approval of the Governor with the consent of the United States Congress.

§ 502. Subdivision, improvement, and leaseof Hawaiian home lands. [For effective date see note.]

(a) The department is authorized to subdivideand improve any Hawaiian home lands suitable for residential use includingsingle-family, multiple-family, apartment, cluster, and row housing, orfor agricultural, pastoral, or aquacultural uses, or a combination of uses.

(b) The department is authorized to enterinto agreements, including leases, subleases, conditional leasing agreements,or other agreements or combinations thereof, with one or more developerswithout recourse to public auction for the construction of off-site andon-site infrastructure improvements and for the development of tracts orresidential units on Hawaiian home lands; provided that the developers'lease and security interest therein will be retired on a pro rata basisby the issuance of either homestead leases or homestead general leasesto native Hawaiians purchasing the subdivided lots and the improvementsrelated thereto; provided further that no state funds shall be utilized.

(c) The qualification requirementsto be met by developers and the minimum standards for improvements to bebuilt shall be as provided by rules adopted by the department.

[L 1986, c 75, pt of § 2]

Editor's Note. - Section 3 of 1986Haw. Sess. Laws, Act 75 provides that this title shall take effect uponthe approval of the Governor with the consent of the United States Congress.

§ 503. Term, rent, and other conditionsof the homestead general lease. [For effective date see note.]

(a) Leases under this title may be foran initial term of not more than fifty-five years with the privilege ofextension when such extension is a condition for participation in any governmentor private mortgage lending, guarantee, or insurance program; providedthat the initial term and extensions shall not exceed seventy-five years.

(b) Annual lease rent shall be an amountequal to the fair market rent of the premises at the inception of the homesteadgeneral lease, as determined by appraisal. The homestead general leasemay include rent escalation and renegotiation clauses for specific periodsduring the term of the homestead general lease as determined by the department;provided that the department is authorized to subsidize lease rents fornative Hawaiian homestead general lessees.

(c) The homestead general lessee shallpay all real property taxes, assessments for the homestead general lessee'spro rata share of the costs of improvements of the tract in which the landis located, and such other charges made against or levied upon the premises.

(d) When constructing any improvementson the premises, the homestead general lessee shall comply with buildingstandards and requirements established by the department.

(e) The premises shall be used for thepurpose prescribed in the original homestead general lease and shall notbe used for any other purpose without the prior written consent of thedepartment.

(f ) Leases under this title shall containconditions permitting the homestead general lessee to sublet or part withthe possession of the whole or any part of the premises and to sell, assign,transfer, or otherwise dispose of, or encumber by way of a mortgage orotherwise, any interest in the homestead general lease or any improvementserected on the premises with the prior written consent of the department.

(g) The department is authorized fromtime to time upon the issuance of a homestead general lease, to modifyany provision contained in this section and section 512 of this title tothe extent necessary to qualify the homestead general lease for any governmentor private mortgage lending, guarantee, or insurance program.

(h) The department is authorized to includeany other conditions in homestead general leases that it deems advisableto effectuate the purposes of this title.

[L 1986, c 75, pt of § 2]

Editor's Note. - Section 3 of 1986Haw. Sess. Laws, Act 75 provides that this title shall take effect uponthe approval of the Governor with the consent of the United States Congress.

§ 504. Qualifications of original lessee.[For effective date see note.]

The original lessee of a homestead generallease shall be a native Hawaiian or native Hawaiians not less than eighteenyears of age.

[L 1986, c 75, pt of § 2]

Editor's Note. - Section 3 of 1986Haw. Sess. Laws, Act 75 provides that this title shall take effect uponthe approval of the Governor with the consent of the United States Congress.

§ 505. Individuals not eligible to receivean original homestead general lease. [For effective date see note.]

The following shall not be eligible toreceive a homestead general lease:

(1) Any individual, or the spouse of anyindividual who holds a homestead lease under section 207(a)of this Act; provided that such an individual shall be eligible if thehomestead lease is transferred or surrendered to the department prior toassuming the homestead general lease, or if the homestead lease is convertedto a homestead general lease as provided by section 507.

(2) Any individual, or the spouse of anyindividual who currently holds a homestead general lease.

[L 1986, c 75, pt of § 2]

Editor's Note. - Section 3 of 1986Haw. Sess. Laws, Act 75 provides that this title shall take effect uponthe approval of the Governor with the consent of the United States Congress.

§ 506. Award of homestead general leases;notification of applicants on homestead waiting lists; disposition by rent.[For effective date see note.]

(a) Homestead general leases in a newsubdivision created under this title shall be offered and awarded in thefollowing priority order:

(1) First, to applicants on the appropriatewaiting list (residential, agricultural, pastoral, or aquacultural) ofthe island on which the lots are located, in rank order based on rulesof the department;

(2) Second, to applicants on all otherhomestead waiting lists of the island on which the lots are located, consolidatedin rank order based on date of application;

(3) Third, to all other applicants onhomestead waiting lists, consolidated in rank order based on date of application;and

(4) Finally, to any native Hawaiian whois at least eighteen years of age, based on the date that written applicationsare received; provided that the department shall not be required to maintainthe applications received as a waiting list for other subdivisions subsequentlycreated.

(b) The department shall notify applicantson homestead waiting lists of the availability of homestead general leasesby publishing a public notice in a newspaper of general circulation andin a newspaper published in each county; provided that the department shallalso notify active applicants on the appropriate waiting list on the islandon which the lots are located by certified mail.

(c) If lots or units are available after allinterested and qualified native Hawaiians have been awarded lots or units,the department may temporarily dispose of the remaining lots or units atfair market rental to the general public with preference to native Hawaiians.The department may develop rental units on the remaining lots and rentthem at fair market rental to the general public, with preference givento native Hawaiians.

[L 1986, c 75, pt of § 2]

Editor's Note. - Section 3 of 1986Haw. Sess. Laws, Act 75 provides that this title shall take effect uponthe approval of the Governor with the consent of the United States Congress.

§ 507. Conversion of homestead lease tohomestead general lease. [For effective date see note.]

The department is authorized topermit a lessee to convert any homestead lease to a homestead general lease.The procedures and conditions for such conversion shall be as providedby rules adopted by the department.

[L 1986, c 75, pt of § 2]

Editor's Note. - Section 3 of 1986Haw. Sess. Laws, Act 75 provides that this title shall take effect uponthe approval of the Governor with the consent of the United States Congress.

§ 508. Transfer of title by bequest, devise,intestate succession, or operation of law, and upon foreclosure. [For effectivedate see note.]

Title to a homestead general lease andto the improvement upon the premises, may be transferred by assignment,sublease, testamentary bequest or devise, intestate succession, or otherwiseby operation of law. Individuals, partnerships, corporations, or agenciesof government, disqualified under the Act to take a lease for homesteadpurposes, may succeed and take title to a homestead general lease and theimprovements on the premises by transfer or by purchasing at or after asale upon a foreclosure of a mortgage permitted under this title.

[L 1986, c 75, pt of § 2]

Editor's Note. - Section3 of 1986 Haw. Sess. Laws, Act 75 provides that this title shall take effectupon the approval of the Governor with the consent of the United StatesCongress.

§ 509. Notice of breach or default. [Foreffective date see note.]

In the event of a breach or defaultof any term, covenant, restriction, or condition of any homestead generallease or other instrument issued under this title, the department shalldeliver a written notice of the breach or default by personal service orby registered or certified mail to the party in default and to each holderof record having any security interest in the land covered by or subjectto the lease or other instrument, making demand upon the party to cureor remedy the breach or default within sixty calendar days from the dateof receipt of the notice; provided that where the breach involves a failureto make timely rental payments pursuant to the homestead general leaseor other instrument issued under this title, the written notice shall includea demand upon the party to cure the breach within not less than five ormore than thirty calendar days after receipt of the notice. Upon failureof the party to cure or remedy the breach or default within the time periodprovided in this section or within such additional period as the departmentmay allow for good cause, subject to section 510,the department may exercise such rights as it may have at law or as setforth in the homestead general lease or other instrument.

[L 1986, c 75, pt of § 2]

Editor's Note. - Section 3 of 1986Haw. Sess. Laws, Act 75 provides that this title shall take effect uponthe approval of the Governor with the consent of the United States Congress.

§ 510. Rights of holder of security interest.[Effective date see note.]

Whenever any notice of breach ordefault is given to any party under section 509,or under the terms of any homestead general lease or other instrument issuedunder this title, a copy of the notice shall be delivered by the departmentto all holders of record of any security interest covered by the homesteadgeneral lease or other instrument whose security interest has been dulyrecorded with the bureau of conveyances. If the department chooses to forfeitthe privilege, interest, or estate created by the homestead general leaseor other instrument, each holder, at its option, may cure or remedy thebreach or default, if the same can be cured or remedied by the paymentof money or, if such is not the case, by performing or pledging in writingto perform all the terms, covenants, restrictions, or conditions of anyhomestead general lease or other instrument capable of performance by theholder, as determined by the department, within the time period providedin section 509 or within such additional period asthe department may allow for good cause and add the cost thereof to themortgage debt and the lien of the mortgage.

[L 1986, c 75, pt of § 2]

Editor's Note. - Section 3 of 1986Haw. Sess. Laws, Act 75 provides that this title shall take effect uponthe approval of the Governor with the consent of the United States Congress.

§ 511. Cancellation of homestead generallease. [For effective date see note.]

After giving notice of breach or defaultas provided in section 509, and subject to the rightsof each holder of record having a security interest as provided in section510, the department may terminate the homestead generallease or tenancy and take possession of the leased land together with allimprovements placed thereon, without demand or previous entry and withoutlegal process, and shall retain all rent paid in advance as damages forthe breach or default.

[L 1986, c 75, pt of § 2]

Editor's Note. - Section 3 of 1986Haw. Sess. Laws, Act 75 provides that this title shall take effect uponthe approval of the Governor with the consent of the United States Congress.

§ 512. Restrictions on transfers; appraisals;waiver when. [For effective date see note.]

(a) The following restrictions shall applyto any transfers, assignments of lease, or agreements of sale:

(1) For a period of ten years after thedate of the original lease, the department shall be given the first optionto purchase the unit, property, or lease at a price which shall not exceedthe sum of:

(A) The original cost to the homesteadgeneral lessee;

(B) The cost of any improvements addedby the homestead general lessee; and

(C) Simple interest on the homestead generallessee's equity in the property at the rate of seven per cent a year. Thedepartment may purchase the unit, property, or lease either outright, freeand clear of all liens and encumbrances, or by transfer subject to an existingmortgage. If by outright purchase, the department shall insure that allexisting mortgages, liens, and encumbrances are satisfactorily paid bythe homestead general lessee. In any purchase by transfer subject to anexisting mortgage, the department shall agree to assume and to pay thebalance on any first mortgage created for the purpose of enabling the homesteadgeneral lessee to obtain funds for the purchase of the unit, property,or lease and any other mortgages which were created with the approval andconsent of the department. In such cases, the amount to be paid to thehomestead general lessee by the department shall be the difference betweenthe above-mentioned price and the principal balance of all mortgages outstandingand assumed at the time of transfer of title to the department.

(2) After the end of the tenth year fromthe date of the original homestead general lease, the department shallhave the first option to purchase the improvements on the lot at a pricenot to exceed the appraised value of the improvements.

(3) For a transfer, assignment of lease,or agreement of sale involving a commercial farm, in addition to purchasingthe improvements, the department may also purchase the mature crops andtree crops. The purchase price shall not exceed the value of the maturecrops and the residual value of the tree crops, and shall be establishedby appraisal, whether or not the transfer, assignment of lease, or agreementof sale occurs during the ten-year restriction period.

(4) In a transfer, assignment of lease,or agreement of sale occurring during the ten-year restriction period,the department's purchase price of the improvements shall be the lesserof the price calculated in paragraph (1) and the value appraised in paragraph(2).

(5) In a transfer, assignment of lease,or agreement of sale, the department's payment to the homestead generallessee shall be the difference of the amount calculated in paragraph (1)or appraised in paragraphs (2) and (3), as the case may be, and any indebtednessto the department.

(6) Notwithstanding any other law to thecontrary, if upon transfer, assignment of lease, or agreement of sale,the department determines that the cost to remedy, renovate, or to restorethe premises to a safe and reasonably comfortable condition is unwarranteddue to the age, condition, or the estimated remaining economic life ofthe improvements, the department shall assign no value to the improvements.The homestead general lessee or legal representative may be authorizedby the department to dispose of the improvements under terms and conditionsprescribed by the department.

(b) For the purposes of this section,the appraisal of improvements or crops to be purchased by the departmentshall be performed by either of the following methods:

(1) By one appraiser mutually agreeableto both the department and the homestead general lessee and the cost ofthe appraisal shall be borne equally; or

(2) By not more than three disinterestedappraisers of which the first shall be contracted for by the department;provided that should the homestead general lessee fail to agree upon thevalue, the homestead general lessee may appoint the homestead general lessee'sown appraiser. If the appraisal values are different and a settlement betweenthe department and homestead general lessee is not possible, a third appraisalshall be performed by a disinterested appraiser appointed by the department'sappraiser and the homestead general lessee's appraiser; provided that thethird appraiser shall act as an arbitrator and determine the final valuewhich shall be between the values of the first and second appraisals. Thedepartment shall pay for its own appraiser, the homestead general lesseeor legal representative shall pay for the homestead general lessee's ownappraiser, and the cost of the third appraiser shall be borne equally.

(c) The restrictions in subsection (a)may be waived by the department if the homestead general lessee wishesto transfer title to the homestead general lease by devise or through thelaws of descent.

[L 1986, c 75, pt of § 2]

Editor's Note. - Section 3 of 1986Haw. Sess. Laws, Act 75 provides that this title shall take effect uponthe approval of the Governor with the consent of the United States Congress.

§ 513. Approval by department required.[For effective date see note.]

Any subdivision of land covered by a homestead generallease and any purchase or sale of improvements erected or installed onlots covered by a homestead general lease shall be subject to the approvalof the department.

[L 1986, c 75, pt of § 2]

Editor's Note. - Section 3 of 1986Haw. Sess. Laws, Act 75 provides that this title shall take effect uponthe approval of the Governor with the consent of the United States Congress.

§ 514. Receipts from homestead generalleasing and other sources. [For effective date see note.]

All receipts from homestead general leasing,from fees and charges, from the sale of improvements authorized by thistitle, rental of units, and any appropriation made for homestead generalleasing purposes shall be deposited into the Hawaiian home receipts fundand shall be available for purposes authorized by this title.

[L 1986, c 75, pt of § 2]

Editor's Note. - Section 3 of 1986Haw. Sess. Laws, Act 75 provides that this title shall take effect uponthe approval of the Governor with the consent of the United States Congress.

§ 515. Administration. [For effective datesee note.]

The department shall adopt rules in accordance with chapter 91, HawaiiRevised Statutes, to carry out the purposes of this title.

[L 1986, c 75, pt of § 2]

Editor's Note. - Section 3 of 1986Haw. Sess. Laws, Act 75 provides that this title shall take effect uponthe approval of the Governor with the consent of the United States Congress.

§ 516. Repeal date. [For effective datesee note.]

This title is repealed five years afterconsent to this Act by the United States or December 31, 1995, whichevershall first occur.

[L 1986, c 75, pt of § 2]

Editor's Note. - Section 3 of 1986Haw. Sess. Laws, Act 75 provides that this title shall take effect uponthe approval of the Governor with the consent of the United States Congress.

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