Hawaii Bar Journal - October 2023

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The 2023 HSBA Directory is coming out shortly with new addresses, phone numbers and photos. Every active attorney in Hawaii (who requested)will get a copy. The Directory is a quick and easy reference tool for attorneys and their support staffs. You can show your staff that you value their time and efforts by providing them with the

most current Directory, instead of an outdated hand-me-down. This year there will be a limited number of extra directories available. Last year we sold out so place your pre-order for extra Bar Directories on or before October 15th to ensure that your firm receives enough copies of the 2023 Bar Directory.

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BOARD OF EDITORS

Christine Daleiden

Joseph Dane

Susan Gochros

Ryan Hamaguchi

Cynthia Johiro

Edward Kemper

Laurel Loo

Melvin M M Masuda

Eaton O'Neill

Lennes Omuro

Brett Tobin

HSBA OFFICERS

President

Rhonda Griswold

President-Elect

Jesse Souki

Vice President

Mark M Murakami

Secretary

Lanson Kupau

Treasurer

Alika Piper

YLD OFFICERS President

Lisa Yang

Vice President/President-Elect

Kelcie Nagata

Secretary

Danica Swenson Treasurer

Andria Schumann

EXECUTIVE DIRECTOR

Patricia Mau-Shimizu

GRASS SHACK PRODUCTIONS

Publisher

Brett Pruitt

Art Direction

Debra Castro

Production

Beryl Bloom

O n t h e C ove r: Tr e e s, L e a v e s, F r o n d s, a n d B e r r i e s by Pa t r i c i a C o o k s o n C o o k s o n i s a H S BA m e m b e r M i xe d m e d i a : o i l p a s t e l a n d w at e rc o l o r p e n c i l I n s p i re d by h i k e s a l o n g t h e A i e a L o o p t r a i l , h o m e t o t h e Ke a i w a H e i a u -

Notices and articles should be sent to Edward C Kemper at edracers@aol com, Cynthia M Johiro at cynthia m johiro@hawaii gov, or Carol K Muranaka at carol k muranaka@gmail com

FAX: (808)521-6931

brett@g rassshack net

All submitted articles should be of significance to and of interest or concern to members of the Hawaii legal community The Hawaii Bar Jour nal reserves the right to edit or not publish submitted material Statements or expressions of opinion appearing herein are those of the authors and not necessarily the views of the publisher, editorial staff, or officials of the Hawaii State Bar Association Publication of advertising herein does not imply endorsement of any product, service, or opinion advertised The HSBA and the publisher disclaim any liability arising from reliance upon infor mation contained herein This publication is designed to provide general infor mation only, with regard to the subject matter covered It is not a substitute for legal, accounting, or other professional services or advice This publication is intended for educational and infor mational purposes only Nothing contained in this publication is to be considered as the rendering of legal advice

The Pursuit of Health and Well-Being: 45 Years of Native Hawaiian Rights

by Makalika

Voiced to the delegates of 1978 Constitutional Conven, this dream of Frenchy Soto and the Hawaiian people achieve and maintain wellng for their young and future nerations continues to resound rcefully with the lāhui today 1 is no surprise, as well-being or the people is the ultimate nd goal of society and the objectives of law, politics, and ness, not to mention g in the 1970s, Hawaiian communities took to the streets and the State Capitol advocating for law that fulfilled its purpose and enabled Hawaiian wellbeing. In that time, the lāhui achieved historic success with several amendments to the Hawai‘i Constitution, including article XII, § 7 regarding the protection of traditional and customary Hawaiian practices; article XII, § 1 requiring that the state sufficiently fund the Department of Hawaiian Home Lands (“DHHL”); and article XII, § 5 creating the Office of Hawaiian Affairs (“OHA”), among numerous other amendments.

Each of these three amendments was advocated with a specific understanding that Hawaiian culture is fundamental to Native Hawaiian well-being, and that culture is inextricably intertwined and dependent upon pilina (relationship) with and

DeSoto and her generation’s numerous successes now enshrined in the Hawai‘i Constitution, Native Hawaiian well-being is persistently under pressure, in meaningful part due to government and state law’s treatment of Native Hawaiian rights as an objective that must be balanced against other interests and therefore constantly compromised These compromises have contributed to an increasing diaspora with more Hawaiians now living outside Hawai‘i than on the islands and to a parade of litigation with Hawaiians steadfastly, yet too often unsuccessfully, on the other side of threats to sacred sites and natural resources like aquifers, wetlands, and streams.3

This article examines Kānaka Maoli well-being, the social change and legal advocacy to protect Kānaka leading up to the 1978 constitutional convention, and certain major subsequent legal developments impacting the law’s effectiveness in achieving the vision of Hawaiian advocates and allies at the convention. This article specifically examines the law that has developed regarding sufficient funding for DHHL and protection of traditional and customary practices, including the natural environment those practices depend upon Together, the promise of these two amendments was the ability for Hawaiian families and communities to maintain stable residence in Hawaii and live according to Hawaiian lifeways, as Hawaiians did since time immemorial prior to colonization The purpose of these goals was to enable health and wellness for Hawaiian communities The lived experience for Hawaiian people relying on these amendments, however, has been filled with challenges

Indigenous Well-Being Frameworks

A fair analysis of how the law has worked to enable Native Hawaiian well-being requires an understanding of Native Hawaiian conceptions of wellness Importantly, the well-being

It is my dream and the dream of my people that the Hawaiian today be given the opportunity to provide for the betterment of the condition and well-being of these young Hawaiians, to address the contemporary problems which Hawaiians face.”

Frenchy DeSoto, Chair of the Hawaiian Affairs Committee of the 1978 Constitutional Convention

Naholowaa, Devin K amealoha Forrest, and Terina Fa‘agau

Inauguration of the first OHA Board of Trustees

Aunty Frenchy DeSoto

Our heartfelt aloha and deepest sympathies

go out to the island of Maui and all of its people. We grieve with those who are suffering during this time of unimaginable loss. The wildfires have taken our loved ones, our homes, and structures steeped in Hawaii’s history, but it hasn’t taken the aloha in the hearts of Hawaii’s people. The communities of Maui will face enormous challenges in the coming months and years; they will not be alone as demonstrated by the outpouring of support that has flooded into Maui. We look forward to doing our part in assisting with rebuilding lives and communities.

The Ohana of Ralph Rosenberg Court Reporters

of a people is contextual It is shaped by their specific worldview, values, and culture. It takes distinct forms in different cultures. Increasingly, international law and policy institutions like the United Nations are acknowledging that cultures have varying perspectives on the nature of flourishing and promote the belief that well-being requires sensitivity to these diverse interests

In the development context for instance, the International Labor Organization recognized that indigenous peoples “shall have the right to decide their own priorities for the process of development as it affects their lives, beliefs, institutions and spiritual well-being and the lands they occupy ”4 To that end, the United Nations Permanent Forum for Indigenous Issues has hosted conferences to allow indigenous peoples to articulate factors relevant to their conceptions of well-being.5 They synthesized the takeaways from these conferences into 12 “global core themes”: security of rights to territories, lands and natural resources; integrity of indigenous cultural heritage; respect for identity and non-discrimination; fate control; full, informed and effective participation; culturally appropriate education; health; access to infrastructure and basic services; extent of external threats; material well-being; gender; and demographic patterns of indigenous peoples The global nature of these findings underscore the historical disregard for indigenous interests and highlights the need to listen to indigenous peoples when evaluating their wellness needs

Many countries have begun this task. New Zealand, for example, with the leadership of Māori people, developed a Māori Statistics Framework to measure indicators of well-being relevant to the Māori community It identified six key dimensions of Māori well-being: sustainability of Te Ao Māori (the Māori world/culture), social capability, human resource potential, economic self-sufficiency, environmental sustainability, and empowerment and enablement.6 These dimensions illustrate commonalities with indigenous groups around the world while still celebrating the unique Māori perspective

Kānaka Maoli Well-Being Models

In Hawai‘i, the lāhui pursues Kānaka Maoli health and wellness from a Kānaka concept of well-being. Similar to other indigenous peoples, Kānaka Maoli have developed frameworks focused on families, communities, systems, and nature that address distinctively Kānaka concerns 7 One such effort is the Kūkulu Kumuhana framework In November 2017, the Lili‘uokalani Trust gathered leaders from Native Hawaiian organizations, including OHA and Kamehameha Schools, to collaborate on a framework for Native Hawaiian well-being This gathering of various Kānaka interest groups identified six key dimensions of Native Hawaiian well-being: Ea (self-determination), ‘Āina Momona (healthy and productive land and people), Pilina (mutually sustaining relationships), Waiwai (ancestral abundance, collective wealth), ‘Ōiwi (cultural identity and native intelligence), and Ke Akua Mana (spirituality and the

sacredness of mana)

These broad and interwoven themes combine to create a comprehensive state of well-being that prioritizes thriving families, communities, and natural environment. These dimensions also reveal concerns, shared by indigenous groups around the world, which are inadequately addressed by traditional Western ideas of community and wellness that often center on or prioritize self realization, individual independence, and economic gain heavily achieved through extraction from nature.

As the Kūkulu Kumuhana group outlined, Kānaka Maoli well-being is intrinsically connected to ‘āina and akua This connection is illustrated by one of the mo‘olelo (historic narratives) explaining the origins of the islands and the Native Hawaiian people The mo‘olelo of Papa, earth mother, and Wākea, skyfather, epitomizes the Kānaka Maoli perspective and relationship to ‘āina and the environment.8

Papa and Wākea have a daughter, Ho‘ohokukalani, who in turn has two sons The first, who is stillborn and is buried at the entrance of the home where he becomes the kalo (taro) plant and is named Hāloanakalaukapalili Shortly after, the second son, named Hāloa after his older brother, was born. This Hāloa is the first Kanaka and the progenitor of Native Hawaiians. Moreover, prior to the birthing of Ho‘ohokukalani and the sons Hāloa, Papa births the Hawaiian archipelago

This genealogical relationship of Kānaka Maoli to ‘āina and vegetative life is the foundation from which traditional and customary practices are built. There is an intrinsic reciprocity in that Kānaka Maoli have a kuleana (duty) to the land from which they descend It is because of this familial tie and kuleana that the well-being of the environment is intertwined with the wellbeing of Kānaka Maoli

As the Kūkulu Kumuhana framework articulates and traditional mo‘olelo support, the pilina (interrelationship) of the ‘āina, people, and gods are maintained and perpetuated by traditional and customary practices Caring for kalo, water sources, and ‘āina is not only environmental stewardship but also a kuleana of a younger generation to the elder Traditional and customary practices do not only perpetuate the well-being of the environment and Native Hawaiian culture. These practices also perpetuate the well-being of the family unit which, in the Kānaka Maoli world view, encompasses all things that comprise Hawai‘i and is not restricted to merely humans This systemic understanding of the world, as well as the role and duties of Kānaka, informs the multi-faceted advocacy of Kānaka Maoli within the law, in realms “branded” Native Hawaiian rights as well as in areas that are not.

The Road to Constitutional Protections for Kanaka Well-Being

For centuries, Kānaka Maoli pursued their conception of well-being. Like modern efforts, pre-contact pursuit of wellbeing was also multifaceted, encompassing social, political, and spiritual life. For instance, ali‘i, rulers of Hawaiian kingdoms,

had not only a right, but a kuleana to secure the well-being of the gods, land, and people.9 The people did not hesitate to overthrow cruel ali‘i to protect the wellbeing of the community

Western contact traumatically disrupted the social, spiritual, and political systems that served Kānaka Maoli wellbeing. Wielding the destructive rhetoric of “savage” and “uncivilized,” colonists introduced new linguistic, political, educational, and cultural systems in the name of “bettering” the Kānaka Maoli 10 Even when well-intentioned, these misguided efforts wrongly assumed, to detrimental effect, that Kānaka Maoli well-being should resemble the models of Europe and the United States Paternalistically, Kānaka Maoli were then systematically dispossessed of their land and culture, severely curtailing the practices of traditional ways and customs.11

Nevertheless, even within the new framework of modernization, western law, and global trade, Kānaka Maoli pursued their well-being in ways that mattered to them. Following over a century of western contact, and the immense socio-political changes that came from western influence and an American-assisted illegal overthrow of the Hawaiian government, efforts to uplift the Native Hawaiian community surged with what is known as the second Hawaiian Renaissance. This 1970s movement sought to revitalize Kānaka Maoli community through recognition of the legitimacy and importance of their culture, advancement of their social and economic position, and protection of their land. Social developments reflected the resurgence During this time, the University of Hawai‘i created a Hawaiian Studies program to nurture Hawaiian culture and preserve its heritage

Additionally, interest in ‘ōlelo Hawai‘i boomed, as did the practice of traditional art forms, such as hula

Informed by the second Hawaiian Renaissance, the 1978 Constitutional Convention channeled a new narrative of Hawaiian history, centering on injustice suffered by the Hawaiian community and the necessity for legal protection and

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remedies The revival of Native Hawaiian culture motivated delegates, prompted proposals, and affected the process and outcomes of the convention. Consequently, the “grass-roots” 1978 Constitutional Convention formed, for the first time, a Hawaiian Affairs Committee, which was strongly supported by the convention despite its youth.12 After hearing proposals related to the protection of Hawaiian heritage and traditions, implementation of the Hawaiian language, preservation of native vegetation, and other cultural concerns, the Committee synthesized its ideas into a proposal to establish OHA to “provide a form of selfdetermination for Native Hawaiians and advocate for their overall well-being ”13

An amendment was also made to ensure that the Hawaiian Home Lands program, established by the U.S. Congress in the 1921 Hawaiian Homes Commission Act (“HHCA”), was “sufficiently funded” to fulfill the goal of Prince Kūhiō to rehabilitate the race 14 Kūhiō understood that Hawaiian well-being starts with the pilina the people have to their ‘āina and the critical need for there to be a path for Hawaiians to live and engage in subsistence practices To that end, the Hawaiian Home Lands programs provide Hawaiian families with residential, pastoral, and agricultural leases. Since its inception, however, the program has been underfunded and mismanaged; as a result Hawaiians have long suffered a waitlist for leases comprising a base requirement for Hawaiian wellness land to live upon Despite the state’s agreement with the federal government during statehood negotiatons that it would faithfully administer the programs, underfunding continuously plagued DHHL and the fulfillment of Prince Kūhiō’s goal after 1959 The explicit addition of a duty to “sufficiently fund” DHHL in the constitution was to remedy that underfunding and enable Native Hawaiians to realize the promise of the HHCA

A new constitutional amendment, codified under article XII, § 7, also protected “all rights, customarily and traditionally exercised for subsistence, cultural

and religious purposes Hawaiian Islands prior to 1778 ” In deliberations on this provision, the constitutional framers recognized that Native Hawaiian “sustenance, religious and cultural practices ... are an integral part of their culture, tradition and heritage, with such practices forming the basis of Hawaiian identity and value systems” and viewed the amendment as a “legal means by constitutional amendment to recognize and reaffirm native Hawaiian rights.” 15

Chair De Soto iterated many times through the convention that these traditional and customary rights were not new rights that were being created, but, as Delegate John Waihe‘e stated, were rather a means to reaffirm the existence of traditional rights.16 Like the inception of the constitutional monarchy of the Hawaiian Kingdom, similar provisions were enacted in the first constitution to ensure that no new law would simply subvert traditional and customary practices laws that had maintained the well-being of the Kānaka

Maoli for centuries 17

Like Kauikeaouli and hose crafters of the irst kingdom constituion, the delegates of he 1978 Constitutional Convention also ought a balance to maintain the wellbeing of Kānaka Maoli hrough the protection and perpetuation of raditional practices and a realignment of he vision of a prosperous State of Hawai‘i, founded on Native Hawaiian values

At the end of the constitutional convenion, these important wins represented pilars upon which Naive Hawaiian well-being could rest. These protections, however, have been challenging to rely upon and defend, resulting in forced legal compromises that stress and compromise Native Hawaiian wellness

The DHHL CompromisesPersistent Underfunding of Hawaiian Homes

A foundational requirement to

maintain Native Hawaiian communities, cultural practices, and land stewardship in Hawaii is sufficient lands for Hawaiians to reside in Hawai‘i. Prince Kūhiō himself iterated that “the only method in which to rehabilitate the race was to place them back upon the soil ”18 In 1920, the U.S. Congress passed the HHCA to enable native Hawaiians to return to their lands and fully support self-sufficiency and the preservation of the values, traditions, and culture of Hawaiians The HHCA provided for more than 200,000 acres of trust land for use providing residential, pastoral, and agricultural leases to native Hawaiians meeting defined blood quantum requirements

The HHCA enumerated and affirmed trust duties owed to native Hawaiians held by the United States, and eventually the State of Hawai’i. Sadly, those duties were infamously breached and neglected. When the state agreed to administer the Hawaiian Home Lands program under the HHCA as a part of its agreement with the federal government to obtain statehood, DHHL was tasked with executing those duties. However, DHHL was immediately and chronically unfunded for decades As a result, DHHL was forced to lease lands held in trust under the HHCA to parties other than beneficiaries to generate income for DHHL’s operations and all development. This caused the waitlist of Native Hawaiians entitled to a Hawaiian Home Lands lease to lengthen Recognizing that funding was needed for

Prince Jonah Kūhiō Kalaniana ole Pi ikoi

p , , state constitution mandated that the legislature provide sufficient funds for the Hawaiian Home Lands program to carry out the “the spirit and intent of the Act ”

The constitutional convention delegates adopted this amendment specifically so that DHHL would no longer need to lease its lands to generate income The convention delegates explicitly mandated that the legislature provide sufficient sums to pay for the various homesteading and rehabilitation programs of DHHL, including its administration and operating budget in furtherance of those programs.19 Despite the compounded duty placed on the State of Hawai‘i to provide sufficient funding, insufficient funding would continue until the waitlist ballooned from 7,901 eligible beneficiaries in 1983, to more than 20,000 in 2007.

Egregious underfunding of DHHL, mismanagement of trust resources, and the harm suffered by Native Hawaiian beneficiaries of the HHCA, eventually resulted in a historic, multi-decade class action lawsuit of waitlisted beneficiaries for damages in Kalima et al v State of Hawai‘i 20 The Kalima case was initiated in 1999 The claimants in the case only recently reached a settlement with the state in 2022 for breaches of trust by the State of Hawai‘i regarding the Hawaiian Home Lands Trust that occurred between 1959 and 1988 The settlement provides a fund of $328 million for claimant compensation and other expenses Claimants

g

market rental value” of the lot they did not receive access to during the time at issue in the case Sadly, however, more than a thousand of the claimants passed away during the more than 20 years the case has been pending; so they personally will never realize the benefits of the settlement Also, for all the claimant families, within a Hawaiian wellness model fair market rental value is an insufficient measure of the harm caused by the disconnection from land suffered.

While Kalima sought compensation for past harms suffered by waitlisted Hawaiians, sufficient DHHL funding in the future remained an ongoing concern In Nelson v Hawaiian Homes Commission (“Nelson I”), the Hawaii Supreme Court found that the state had “failed, by any reasonable measure, under the undisputed facts, to provide sufficient funding to DHHL” and that, “[t]he State’s track record in supporting DHHL’s success is poor, as evidenced by the tens of thousands of qualified applicants still on the waiting lists and the decades-long wait for homestead lots ”21 Nelson I did not, however, determine what specific amount constitutes “sufficient sums” for DHHL; rather, it held that the 1978 Consitutional Convention history provided “judicially discoverable and manageable standards” for what is considered sufficient funding and remanded the matter for further proceedings In Nelson v Hawaiian Homes Commission (“Nelson II”) which

primarily dealt with an attorneys fees issue, the Supreme Court noted, “[t]he State must now fund DHHL’s administrative and operating expenses.”

For Native Hawaiians, “sufficient sums” is an amount that enables DHHL to fulfill its affirmative trust and fiduciary duties expeditiously and award beneficiaries leases so that no beneficiary dies while on a waitlist or is forced to leave Hawai’i for want of a home In Nelson v Hawaiian Homes Commission (“Nelson III”), the Supreme Court vacated the trial court’s ruling in favor of beneficiaries holding that “sufficient sums” for DHHL, at minimum, means the administrative and operating expenses from the 1978 Constitutional Convention baseline level of $1 3 to 1 6 million, adjusted for inflation The Supreme Court directed the trial court, on remand, to determine whether sufficient sums under this standard were provided to DHHL for the 2015-2016 fiscal year Applying a narrow interpretation of the Supreme Court’s directive, the trial court concluded that the Nelson plaintiffs lost – despite evidence of chronic underfunding of DHHL over the span of decades – because DHHL had been provided sufficient sums in the single, fiscal year of 2015-2016 The appeal of this decision is currently still pending before the Intermediate Court of Appeals.

The Nelson lawsuits exposed the state’s chronic underfunding of DHHL Through the various Nelson opinions, the Supreme Court repeatedly acknowledged the insufficient funding to DHHL and ultimately confirmed the minimum standard for sufficient annual funding to DHHL was at least equivalent to the amount of funding that was discussed at the 1978 Consitutional Convention, with increases adjusted for inflation. The lawsuits also prompted DHHL to seek sufficient funding from the state and for the Legislature to begin providing sufficient funds to DHHL Indeed, in recent years and as a result of effective political advocacy, there have been positive developments on funding for DHHL, including a historic decision by the state in

Kaho olawe Access

2022 to provide a one-time $600 million sum of funding to DHHL for purposes of addressing the needs of Hawaiians on the waitlist.

While progress has been made, the law has resulted in a gap between what Native Hawaiian advocates fought for when securing the duty for “sufficient funding” during the constitutional convention and what the Supreme Court has determined the state must do

The First Generation of Compromises for Traditional and Cultural Practice

Rights – Undeveloped Land and Ka

Pa‘akai

In addition to lands for residence and subsistence practices, another foundational need for Hawaiian wellness is the ability to perpetuate traditional and customary cultural practices. Vital to cultural practices and their perpetuation is the need to protect natural resources and to access those resources upon which the

practices depend

The Hawai‘i Supreme Court cases interpreting the state constitution’s protection of “traditional and customary rights” most frequently involve state agencies and compliance with article XII, § 7 in the context of land use 22 The Supreme Court first interpreted the scope of rights under article XII, § 7 in Kalipi v. Hawaiian Trust Co 23 William Kalipi, a Native Hawaiian cultural practitioner, sought to gather ti leaf, bamboo, kukui nuts, kiawe, medicinal herbs, and ferns on undeveloped lands in the ahupua‘a of ‘Ōhi‘a and Manawai on Moloka‘i to be used for traditional and customary practices. Kalipi owned a taro patch in Manawai and an adjoining houselot in ‘Ōhi‘a, but he lived in the nearby ahupua‘a of Keawenui

The Court determined that Kalipi had “limited” gathering rights on “undeveloped lands.” Before addressing Kalipi’s claims, the Court recognized that article XII, § 7’s “expression of policy” must

guide courts’ determinations on traditional and customary rights. The Court held that “the retention of a Hawaiian tradition should in each case be determined by balancing the respective interests and harm once it is established that the application of the custom has continued in a particular area.” The Court ultimately concluded that because Kalipi did not live in ‘Ōhi‘a or Manawai, he could not assert traditional and customary gathering rights in either ahupua‘a Although Kalipi affirmed Native Hawaiian traditional and customary rights, the decision at the same time legally severed Kalipi’s pilina to ‘Ōhi‘a and Manawai.

In Pele Defense Fund v Paty, the Hawai‘i Supreme Court reaffirmed and expanded article XII, § 7 protections by holding that, contrary to its prior holding in Kalipi, traditional and customary rights do extend beyond a Native Hawaiian’s ahupua‘a of residence 24 In that case, the Pele Defense Fund (PDF) sued the State

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Board of Land and Natural Resources (“BLNR”) and argued that its Native Hawaiian members’ article XII, § 7 rights were violated because members were denied access to undeveloped lands in Wao Kele O Puna to engage in traditional and customary subsistence and religious practices. PDF members lived in an ahupua‘a abutting Wao Kele O Puna and presented evidence supporting that traditional and customary practices were not bound within an ahupua‘a In addition, the Court found that the constitutional framers “contemplated that some traditional rights might extend beyond the ahupua‘a.” Thus, the Court held, “native Hawaiian rights protected by article XII, § 7 may extend beyond the ahupua‘a in which a native Hawaiian resides where such rights have been customarily and traditionally exercised in this manner.” The Court’s holding aligned the law more closely with Hawaiian tradition and custom regarding Native Hawaiian pilina with ‘āina

In Public Access Shoreline Hawaii v Hawaii County Planning Commission (“PASH”), the Hawai‘i Supreme Court interpreted Native Hawaiian traditional and customary rights in the context of proposed developments 25 In PASH, the Hawai‘i County Planning Commission received an application for a special management area use permit to build a resort development on Hawai‘i Island. PASH, a public interest membership organization based in Kailua-Kona, opposed the permit and requested contested case hearings before the Commission The Commission found that PASH lacked standing and denied its requests for a contested case hearing

On appeal, the Court further defined the scope of Native Hawaiian traditional and customary rights After tracing the history of land tenure in Hawai‘i and the framers’ intent in enacting article XII, § 7, the Court announced that “the western concept of exclusivity is not universally applicable in Hawai‘i ” It also clarified that for “Hawaiian usage” purposes, “Native Hawaiians” are “those persons who are ‘descendants of native Hawaiians who inhabited the islands prior to 1778,’ and

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who assert otherwise valid customary and traditional Hawaiian rights under HRS § 1-1, . . . regardless of their blood quantum.” PASH also underscored that “the reasonable exercise of ancient Hawaiian usage is entitled to protection under article XII, section 7 ”

PASH expounded the “undeveloped land” requirement from Kalipi. The Court explained that “once land has reached the point of ‘full development’ it may be inconsistent to allow or enforce the practice of traditional Hawaiian gathering rights on such property ” It acknowledged that “[a]lthough access is only guaranteed in connection with undeveloped lands, and article XII, section 7 does not require the preservation of such lands, the State does not have the unfettered discretion to regulate the rights of ahupua‘ a tenants out of existence.”

While the Court, through these various cases, had been coloring and defining Article XII, § 7 protections, it had yet to articulate a framework to operationalize these definitions The Ka Pa‘akai O Ka ‘Aina v. Land Use Commission case provided that judicial guidance agencies “badly needed” to enforce Native Hawaiians’ traditional and customary rights more effectively 26

In Ka Pa‘akai, the State Land Use Commission (“LUC”) granted a developer’s petition to reclassify over 1,000 acres of land within a conservation district in North Kona to “urban district” for the development of a resort expansion Asserting that their traditional and customary practices would be adversely affected by the proposed development, Native Hawaiian practitioners petitioned to intervene

The LUC allowed the practitioners to participate, but after the contested case hearing, it approved the developer’s petition to reclassify.

On appeal, the Hawai‘i Supreme Court articulated the legal analytical framework the state must use to evaluate “whether it fulfilled its constitutional obligation to preserve and protect” Native Hawaiians’ traditional and customary rights. The Ka Pa‘akai Court held that article XII, § 7 places “an affirmative

duty on the state and its agencies to preserve and protect traditional and customary native Hawaiian rights.” The Court recognized that “for the rights of native Hawaiians to be meaningfully preserved and protected, they must be enforceable” and thus an “appropriate analytical framework for enforcement is needed.”

Under the Ka Pa‘akai framework, the state and its agencies must make specific findings and conclusions as to:

(1) the identity and scope of valued cultural, historical, or natural resources in the petition area, including the extent to which traditional and customary native Hawaiian rights are exercised in the petition area;

(2) the extent to which those resources including traditional and customary native Hawaiian rights will be affected or impaired by the proposed action; and

(3) the feasible action, if any, to be taken by the Land Use Commission to reasonably protect native Hawaiian rights if they are found to exist.

The framework seeks to balance “the competing interests of protecting Native Hawaiian culture and rights, on the one hand, and economic development and security, on the other.” Without such requirements, the court believed “the promise of preserving and protecting customary and traditional rights would be illusory[ ]” The Court concluded that the LUC failed to satisfy its constitutional obligations under the Ka Pa‘akai framework

These seminal cases in Hawai‘i’s jurisprudence of traditional and customary practice protection illustrate the state’s willingness to fiercely advocate for an interpretation so narrow it could allow for a practice to be effectively regulated out of existence This has forced Hawaiians and the courts to invest substantial time and resources ensuring that this important constitutional protection remains meaningful. As a result, the contours of the protection reflect deep compromise with:

(i) protections narrowed to undeveloped lands and (ii) practitioners and practices subjected to a balancing test that provides significant deference to state agencies.

Looking back from that time, roughly twenty years, or one generation, after the constitutional convention, this was almost certainly not the vision Hawaiian advocates for traditional and customary practice protections in the 1970s.

Nevertheless, Ka Pa‘akai was an important inflection point in the development of Native Hawaiian rights law that clarified the state’s accountabilities under Article XII, § 7. The second generation of advocacy has turned to how Article XII, § 7 and Ka Pa‘akai should be applied to protect Hawaiian traditional and customary practices not only as affirmative discrete activities but also as holistic efforts to aloha ‘āina.

Article XII, § 7 Post-Ka Pa‘akai

In In re ‘Iao Ground Water Mgmt Area High-Level Source Water Use Permit Applications, the Court applied the Ka Pa‘akai framework to an agency’s amendment of interim instream flow standards (IIFS) 27 For more than 1,000 years, Nā Wai ‘Ehā, four streams on Maui, provided their surrounding ahupua‘a with abundant fresh water, making it the largest continuous area of wetland taro cultivation in the Hawaiian Islands 28 These waters “physically and spiritually nurtured its Indigenous People, enriching lands and other resources, promoting a vibrant culture, enhancing the overall quality of life, and enabling political independence and cultural sovereignty ” Since 1862, however, sugar interests began to divert Nā Wai ‘Ehā for commercial uses, namely plantation irrigation Over a century later, Kānaka continued to suffer the impacts of those water diversions: “Cultural experts and community witnesses [testified about] limitations on Native Hawaiians’ ability to exercise traditional and customary rights and practices in the greater Nā Wai ‘Ehā

(Continued on pa ge 26)

PUBLIC WARNING: Unlicensed Attorneys May Seek to Capitalize on the Maui and Hawai‘i County Wildfire Disasters.

In light of the recent Maui wildfires, the Office of Disciplinary Counsel (“ODC”), under the Disciplinary Board of the Hawai‘i Supreme Court, issued a caution to the consumer public about unlicensed attor neys who may prey on vulnerable, affected individuals 1 This caution is also a reminder to members of the bar of the relevant rules

• The State of Hawai‘i prohibits the unauthorized practice of law by statute Haw Rev Stat § 605-14

• Only the Hawai‘i Supreme Court can authorize a person to practice law in Hawai‘i. Haw. Const. Art. 6, Sec. 7; and Haw. Rev. Stat. § 605-1.

• Limiting the practice of law to members of the Hawai‘i bar, and those nonHawai‘i lawyers specially admitted, protects the public against rendition of legal services by unqualified persons. Hawai‘i Rules of Professional Conduct (“HRPC”) Rule 5.5 official comment [1].

• The Hawai‘i Supreme Court and its Disciplinary Board, through its ODC, holds legal practitioners to account for any misconduct in violation of the HRPC Rules of the Supreme Court of Hawai‘i (“RSCH”) Rules 2 1 and 2 2

• The pur pose of attor ney discipline is protect the public from those attor neys who do not confor m to the HRPC Akinaka v Disciplinar y Bd , 91 Hawai`i 51, 55 (1999)

Further, the jurisdiction of the Hawai‘i Supreme Court, its Disciplinary Board, and the ODC extends not only to attor neys licensed or otherwise admitted in Hawai‘i, but also to those licensed to practice law in any other state or territory of the United States or the District of Columbia, who practice law or render or offer to render any legal services in Hawai‘i 2

As a result, any lawyer, law fir m, or other operation advertising, soliciting, or otherwise communicating the availability of its services in the wake of the recent wildfire disaster is subject to the Hawai‘i rules, and under the jurisdiction of the Hawai‘i Supreme Court, its Disciplinary Board and the ODC Hawai‘i law places many restrictions on lawyers seeking employment, some of those are listed below Prospective clients should carefully scrutinize lawyer solicitations and be wary of contacts, particularly from non-Hawai‘i lawyers or law fir ms

• Lawyers are prohibited from soliciting employment by direct in-person, live telephone, email, or text messages at any time 3

• Lawyers are prohibited from soliciting employment by way of communication addressed to the victim, or the victim’s relatives by any other method (including conventional mail, robocall, f lyer, or other device,) unless the personal injury or wrongful death occurred more than 30 days prior to the sending of the communication HRPC Rule 7 2(e)(1)

• Lawyers are prohibited from soliciting or continuing to solicit employment from a victim, or a victim’s family, when the victim or family makes known their desire to be left alone HRPC Rule 7 2(b)(1), and (e)(2)

• All advertisements for legal services shall include the name of at least one Hawai‘i licensed lawyer responsible for its content. HRPC Rule 7.2(c).

• Advertisement by mail shall include the word “Advertisement Material” on the outside of the envelope, and electronic advertising shall include the words “Advertising Material” at the beginning and the end HRPC Rule 7 3(c)

• Any ag reement to retain a lawyer, and any subsequent changes to the ag reement, must be in writing and provided to the client HRPC Rule 1 5(b)

• Fee ag reements contingent on success (“no fee if we don’t win”) must be signed by the client, and shall explain the division of fees, charges included or ex-

cluded, and other issues that impact the client’s recovery HRPC Rule 1 5(d)

• No fees shall be shared between lawyers not in the same law fir m unless 1) the client ag rees in writing, 2) all the lawyers assume joint liability for the representation, and 3) the total fee is reasonable. HRPC Rule 1.5(e).

• Fee sharing between lawyers not in the same fir m are to be in proportion to the services perfor med by each lawyer and thus cannot be a preset percentage split. Id.

• Any retainers, undisbursed settlements, or unear ned funds entrusted to a lawyer, must be deposited by the lawyer into a trust account held in a Hawai‘i financial institution approved by the Hawai‘i Supreme Court 4

Non-Hawai‘i law fir ms seeking to represent victims of the recent wildfires may do so in Hawai‘i only if they employ one or more actively licensed Hawai‘i lawyers in the fir m or if they have associated with a Hawai‘i licensed attor ney in a manner consistent with the HRPC and rules of court,

• Complaints against wrongful lawyer conduct can be submitted directly to the ODC See www dbhawaii org /ho w-to-filea-complaint-with-the-odc/

• Persons who have lost money due to a lawyer’s dishonesty may file claims with the Lawyers Fund for Client Protection. See www hawaiilawyersfund com

• Hawai‘i lawyers impacted by the disaster may seek assistance from the Attorneys ’ and Judges’ Assistance Prog ram. See www.hawaiiaap.com.

1 See https://dbhawaii org/maui-wildfire-information/ for more infor mation provided by the ODC

2 RSCH Rule 2 1 (effective July 1, 2022) Unlicensed practice of law in Hawai‘i may also be in violation of HRS § 605-14 and subject to the jurisdiction of the Attor ney General’s office

3 HRPC Rule 7 3(a); see also Haw FEO 41 (Attor ney web sites and other electronic advertising)

4 RSCH Rule 11 See https://www hawaiijustice org/welcome-to-the-hawaii-justice-foundation/info-for-lawyers/iolta-approved-banks

H S B A H A P P E N I N G S

HSBA Board Action

The HSBA Board took the following action at its meeting in July:

• Voted to (1) approve the list of ABA resolutions identified by the Hawaii ABA members that serve in the ABA House of Delegates (HOD), and the list identified by the HSBA President, President-elect, and Vice President, that do not pass the HSBA’s Keller* analysis, and (2) infor m those delegates of the Board’s position, in addition to requesting certain Hawaii HOD representatives to tender recusal notices to the ABA for resolutions identified.

○ * Excer pt 7 2B of HSBA Board Policy Manual (i.e., Keller Policy) provides that the HSBA will not use mandatory dues, engage in activities, per mit the use of its name in relationship with, or take positions on, political or ideological issues unless the HSBA Board:

• Deter mines to a reasonable certainty, that the issue is ger mane to the pur poses of the unified bar (with “ germane ” under Keller meaning “regulating the legal profession” or “improving the quality of legal services available to the people of the State”); and

• Believes that such activities or position taken by the HSBA generally would be supported by its members.

HSBA Representative on PACE Commission

The HSBA Nominating Committee seeks interested individuals to serve as its representative on the Commission to Promote and Advance Civic Education (PACE Commission). The ter m is for three years and begins on March 29, 2024. Qualifications include a demonstrated interest and familiarity with civic education; willingness and ability to devote time to perfor m necessary duties; and being conscientious, studious, thorough, and diligent in lear ning methods

and problems of the organization.

Duties include promoting and advancing civic education for students and citizens throughout Hawaii Please refer to the following link for more infor mation on the PACE Commission: https://bit l y/3qDDPpS

Anyone interested in serving in this capacity should submit a resume, including their area of concentration, and a reason for wanting to serve to nominations@hsba org Please note that these positions are uncompensated, and that applicants need to disclose all public disciplinary sanctions If there have been none, then state that such is the case. A pplications must be received at the HSBA no later than October 31, 2024

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Hawaii State Federal Credit Union

HSBA members are eligible for membership with Hawaii State Federal Credit Union Hawaii State FCU offers low rates on business loans and lines of credit, mortgages, home equity lines of credit, auto loans, and personal loans

Additional services include free EChecking accounts, surcharge-free access to over 400 ATMs statewide, free online and mobile banking, and much more Call (808) 587-2700 or (888) 5861056 (toll free) for more infor mation.

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They offer direct deposit free of charge and provide a level of human resources support to cover all bases They are excited to team up with HSBA to provide service to even more fir ms across the state. New clients will receive a 10% discount from the monthly fee Please contact Nick Salisbury, Manager, at (808) 499-9651. You can also submit inquiries to info@honolulupayroll com and read more infor mation at www.payrollhonolulu.com.

HSBA Conference Rooms

HSBA conference rooms are available at the Hawaii State Bar Association offices at 1100 Alakea Street, Suite 1000, for HSBA members at $25 per hour (small) and $50 per hour (large), including telephone and wireless service. Call (808) 537-1868 for availability and see our guidelines located on our website accessible via the following link: https://bit l y/3TRtRtf

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Chief Justice Mark E. Recktenwald

Response to Reports of the 2022 Civil, Criminal, and Family Law Forums

INTRODUCTION

On behalf of the Hawai‘i State Judiciary, I would like to express my gratitude to the attor neys and judges who participated in the 2022 Civil, Criminal, and Family Law Forums In addition, I would like to thank the Hawai‘i State Bar Association (“HSBA”) Committee on Judicial Administration (“JAC”), in particular, co-chairs Associate Justice Simeon R. Acoba (ret.) and Vladimir Devens, for organizing the forums and preparing the resulting reports

Over 280 members of the bar, bench, and judiciary administration attended the forums, which were held remotely through the Zoom meeting platfor m in the Fall of 2022 As with the comments and suggestions from previous bench-bar conferences and forums, the reports of the 2022 Civil, Criminal, and Family Law Forums were reviewed and considered by me, our Chief Judges, and the Administrative Director of the Courts The reports have also been provided to all of our judges

The 2022 law forums marked a significant milestone of ten years of the close collaboration between the JAC and the Judiciary in convening bench-bar conferences to address systemic issues of concer n to the bench and bar In 2014, the practice of holding law forums in alter nating years was established to promote understanding and communication in specific practice areas The conferences and forums have become a critical resource for the Judiciary They provide an invaluable opportunity for practitioners and the courts to exchange infor mation and ideas, identify problems, and work towards solutions. We appreciate the spirit of cooperation with which these events are held and recognize it would not be possible without the ongoing efforts of the JAC and the steadfast support of the HSBA, President Rhonda Griswold, and in particular, Executive Director Pat Mau-Shimizu. We are heartbroken by Pat’s passing these forums and conferences are just one of countless examples of her unique ability to bring people together for the common good

CIVIL LAW FORUM

The 2022 Civil Law Forum addressed a range of topics, including discussion of insurance-related COVID issues, litigation practices in suits brought against the state and counties, the administrative appeals process, and implementation of the new civil rules The presentations at the Civil Law Forum were directed at educating and providing infor mation relevant to practitioners, and it was helpful to hear from these subject-matter experts in these specific areas.

The subject most pertinent to the role and responsibilities of the courts was the panel discussion on the implementation of the new civil rules The long-standing efforts to improve the civil justice system culminated with the promulgation of new rules that became effective on January 1, 2022. Over the past five years, the feedback and thoughtful suggestions received through the civil law forums and bench-bar conferences played an integral role in shaping the Civil Justice Improvements Task Force

recommendations towards the goal of reducing costs and delay and streamlining the litigation process in Hawai‘i’s circuit courts

In the first year of implementation, the new rules have helped to encourage the court and parties to take a proactive approach to case resolution. Scheduling conferences and other deadlines now require that the parties meet sooner, which, in tur n, facilitates trial setting and alter native dispute resolution, providing a pathway for settlement of a case earlier in the process. As of July 2023, the courts have only received a limited number of requests for expedited trials, so we will need more time to see the full effects that the rules will have on civil trial practice We will continue to closely monitor the implementation and application of the new rules and address any issues that arise As always, we welcome feedback from the bar and will continue to search for ways to make the civil justice system more fair, efficient, and accessible

Although not discussed at the forum, I would like to share a positive new development relating to probate practice

During the last legislative session, Senate Bill 483 was introduced as part of the Judiciary’s bill package to update the Unifor m Probate Code (“UPC”). It has now been signed into law by the Gover nor as Act 158 (2023) This measure changes

Articles I through IV of the Hawai‘i UPC to be consistent with revisions made by the Unifor m Law Commission, makes technical amendments to enhance clarity and addresses concer ns raised by the courts and local practitioners to improve the efficiency of the probate process Substantive changes include the addition of new rules defining a parent-child relationship for probate pur poses that address societal changes resulting from multiple parent families and advances in assisted reproductive technologies, and it also adopts the Unifor m Estate Tax Apportionment Act, which provides fair procedures for apportioning the burden of estate taxes among beneficiaries of a decedent’s estate. I want to acknowledge the Committee on the Unifor m Probate Code and Probate

Court Practices for their hard work and dedication in bringing about these positive statutory and procedural changes I would also like to thank Chief Judge R Mark Browning for his strong leadership as Chair

CRIMINAL LAW FORUM

The 2022 Criminal Law Forum included presentations on: (1) the establishment of the Hawai‘i Correctional System Oversight Commission (“HCSOC”), infor mation about the current State of Hawai‘i correctional facilities, and planning for the new jail on Oahu; (2) mandatory sentencing, mandatory minimum ter ms of imprisonment, and the role of the Hawai‘i Paroling Authority; (3) the knock and announce law in Hawai‘i for the execution of warrants; and (4) legislative measures relating to criminal law from the 2022 legislative session

Improving the criminal justice system as a whole remains a shared goal of both the bench and bar and has far-reaching impacts within our community In particular, the discussion focused, in part, on prison refor m, which has been a critical topic for many years Significantly, in 2016, the House Concurrent Resolution (“HCR”) 85 Task Force was established to examine and suggest improvements to Hawai‘i’s correctional system Led by Chair Associate Justice Michael Wilson (ret ), the HCR 85 Task Force made recommendations toward a new vision of corrections that focused on transitioning from a punitive to a rehabilitative model As a result of the Task Force’s work, the HCSOC was created in 2019 We recognize that these efforts to make positive changes across the system are a shared responsibility of all the stakeholders involved The Judiciary is committed to working collaboratively to address these systemic issues, reduce recidivism, and promote public safety

In the panel presentation led by Christin Johnson, Oversight Coordinator for the HCSOC, and Robert Merce, former Vice-Chair of the HCR 85 Task

Force on Prison Refor m, the overcrowded conditions of Hawai‘i correctional centers was a central issue The presentation also emphasized the need to address the root causes that bring many individuals into the justice system, such as mental illness, homelessness, and substance use disorders, in order to break the cycle of incarceration

Over the years, the Judiciary has established a number of programs that are designed to identify these underlying issues, offer treatment and resources while providing community supervision as a way to divert individuals away from our jails and prisons These specialized dockets include the Drug, Mental Health, and Veterans Treatment Courts in our circuit courts, as well as Community Outreach Court and DWI Court in our district courts Last year, we established a program designed for women in the criminal justice system after the Legislature funded a Women’s Court pilot program in the First Circuit This gender-responsive program incor porates trauma-infor med, evidence-based practices and provides services that address the distinct needs of women, who are shown to have different pathways into criminal involvement and more extensive histories of trauma than men. In just one year, the Women’s Court, now known as Mohala Wahine, is already fully staffed, and has enrolled its first twelve participants I am deeply appreciative of Judge Trish Morikawa for her unwavering commitment to better serve the women who come into our courts, both in her role as the presiding judge of Women’s Court and the Chair of the Women’s Corrections Implementation Commission

The prevalence of mental illness in our community and among our jail population is another persistent and ongoing concer n People suffering from mental illness frequently end up in the criminal justice system All too often, they languish in custody and repeatedly cycle in and out of incarceration, without access to adequate treatment or services. The Judiciary is collaborating with other branches of gover nment to reduce the unnecessary

over-incarceration of individuals suffering from mental illness and to break the cycle of recidivism by finding ways to divert them away from the criminal justice system and into treatment

We have taken a number of steps toward this goal. In 2019, together with for mer Gover nor David Ige, we convened the “Hawai‘i Summit on Improving Gover nmental Response to Community Mental Illness” to gather leaders from all branches of gover nment and the community to search for solutions. This collaboration led to the passage of Act 26 in 2020 Prior to Act 26, defendants suffering from mental illness who were charged with non-violent petty misdemeanors would often remain in custody for several months, longer than the 30-day maximum ter m of incarceration, while waiting for mental fitness examinations or restoration of fitness Ultimately, these defendants would be released, either because they remained unfit or were sentenced to time served, without follow-up treatment in the community, which frequently led to their re-arrest for minor offenses and resumption of the cycle of incarceration Under Act 26, non-violent petty misdemeanor defendants are given expedited fitness examinations (usually within ten days), and those found unfit have their charges dismissed and are offered access to treatment in the community In just over two years, more than 70 defendants have been discharged and offered treatment services pursuant to Act 26, and the State has saved over $8.5 million due to reduced incarceration and state hospital costs.

The next step we took was to reconvene the stakeholders in late 2022 by hosting mini- summits together with the Department of Health in every county to ensure each county moves forward in this important area. This allowed us to assess the unique needs and resources on each island and develop workable solutions tailored to these communities This effort reinvigorated local activities, such as the Kaua‘i Jail Diversion Prog ram, and also helped improve coordination between a g e n c i e s a n d

DEPUTY C COR PORATION C COU N SEL A AN D L LAW CLER K/LAW I INTERN V VAC ANCI ES

The County of Maui, Department of the Corporation Counsel, seeks to fill vacant Deputy Corporation Counsel positions at all experience levels. Current Hawaii State bar license in good standing is required. The ideal applicant should have strong oral and writing skills and legal research abilities, with a commitment to public service. Seeking applicants interested in legislative, transactional, administrative law, and civil litigation. Salary range is $74,990 to $147,265, depending on years of experience. Benefits package includes generous paid leave (sick and vacation), pension, health coverage, and defined-contribution plans.

The Department is also recruiting law school graduates who intend to take the next bar exam or are awaiting bar exam results as Law Clerks. Law Clerks would be in an excellent position to be hired as Deputy Corporation Counsel upon passage of the bar exam. Salary is $73,000. Position comes with full benefits.

The Department is also recruiting law school students for limited-term law intern positions. Paid positions are $20/hour and may include benefits.

To apply, submit letter of interest, resume, work sample, and references to: corpcoun@mauicounty.gov.

Mediation & Arbitration

10

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•••

Earlier this year, a group consisting of representatives from the Judiciary, Honolulu Department of the Prosecuting Attor ney, Office of the Public Defender, and Department of Health traveled to Miami to study highly successful programs implemented by Miami-Dade County to divert defendants with serious mental illnesses away from the criminal justice system and into community-based treatment and support services The group retur ned with agreements establishing procedures for post-booking jail diversion programs based on the Miami-Dade model for First Circuit district and circuit courts The agreements apply to defendants charged with non-violent misdemeanors and promoting a dangerous drug in the third degree, as approved by the prosecutor, and other charges on a case-by-case basis. The agreements establish procedures for screening and assessing defendants for serious mental illness, enrolling appropriate defendants into diversion programs for treatment, and dismissal of the charge if the defendant complies with the diversion plan. The diversion programs are currently being implemented in the First Circuit and eligible defendants have enrolled

The Judiciary is also supporting efforts to develop resources, such as mental health drop-off centers and crisis stabilization units, to give law enforcement safe places to take people who are exhibiting clear signs of mental illness for treatment, as an alter native to arresting them We continue to work closely with Gover nor Josh Green, M.D., and the Legislature to explore effective initiatives to address mental illness in our community There is much more work to be done, but I am encouraged by these promising first steps and the strong collaboration among leadership across the criminal justice and behavioral health systems.

Finally, I would like to update you on progress made in the area of criminal pretrial refor m, which has been another key area of focus for improvement over the past few years. Since the creation of the Criminal Pretrial Task Force in 2017, the Judiciary has continued to examine pretrial practices and procedures One signif-

icant recommendation from the Task Force Report was to establish a centralized statewide criminal pretrial justice data reporting and collection system, which was codified in Act 179 (2019) Over the past year, the Criminal Justice Research Institute (“CJRI”) has made significant strides in fulfilling this mandate. In the fall of 2022, CJRI conducted a feasibility study which confir med the technological requirements, outlined a timeline, and provided a cost estimate for this project In the 2023 legislative session, Act 147 (2023) was passed to appropriate funds to establish the pretrial database and reporting system This pretrial database and reporting system will address many of the barriers to evaluating the effectiveness of the pretrial system identified by the Task Force Report and will expand research and data capacity, allowing for more quick and comprehensive metrics to be produced I am thankful to CJRI Director Dr Erin Harbinson and the CJRI board and staff for their continued leadership on enhancing this aspect of the criminal justice system.

FAMILY LAW FORUM

The 2022 Family Law Forum touched upon a number of important subjects including the effects of domestic violence on children, and the child welfare services process In particular, speaker Lynn Hecht Schafran shared some thoughtful recommendations relating to custody cases in family court

Over the past year, we have been working to implement the SAFeR approach to decision-making in child custody matters as a pilot project in First Circuit Family Court 1 This nationallyrecognized methodology provides a framework to screen for intimate partner violence (“IPV”) in every case, assess the nature and context of any IPV, focus on the effects of IPV, and respond to the experience of IPV in custody related recommendations and decisions These four key elements are in alignment with the recommendation that family court professionals, including judges and court staff, should be well educated on the impacts of domestic

violence on children, support the protective, non-abusing parent, and take a holistic approach when making deter minations of the best interest of the child

In February 2023, through a productive partnership with the Center for Justice Innovation (“CJI”), an initial remote SAFeR training was developed and provided to approximately 115 judges, attorneys, custody evaluators/investigators and domestic violence advocates from across the state This was followed by four inperson trainings tailored to specific groups: domestic violence advocates/attor neys, best interest fact finders/custody evaluators and investigators/guardians ad litem, family court staff, and family court judges Since then, the First Circuit Family Court has been working with CJI to operationalize the SAFeR approach. This effort was funded by the Office on Violence Against Women, STOP (Services, Training, Officers, Prosecutors) Violence Against Women and Justice for Families grants My thanks go out to Senior Family Court Judge Matthew Viola and Program Specialist Dayna Miyasaki for their initiative and dedication to pilot this program that will better protect the safety of children while preserving the rights of parents

Along the same lines, Ms. Schafran advised that any individuals providing recommendations to the court regarding custody should receive specialized training This past legislative session, the Women’s Legislative Caucus sponsored House Bill 581, which was recently signed into law as Act 85 (2023). Act 85 requires custody evaluators to complete domestic violence training every three years We were supportive of this measure and agree that custody evaluators should be knowledgeable about the dynamics of domestic violence and its impact on children. Thank you to the Women’s Legislative Caucus for their advocacy on this issue to further ensure the best interests of the child are represented

The Judiciary continues to look for ways to support access to justice in the family law context as well The Hawai‘i Supreme Court recently issued an Order approving the “Rural Pater nity Advocate

Pilot Project in the Third Circuit” (“Paternity Pilot”) This Pater nity Pilot is a partnership between the Judiciary and the Legal Aid Society of Hawai‘i (“LASH”) to use trained and qualified advocates, working under the supervision of a licensed attor ney, to represent clients in select pater nity, child custody, and visitation cases in Hilo In these specific areas of practice, the vast majority of parties are unrepresented as attor neys have not been taking on these types of cases. All advocates will go through an extensive training consisting of 14 classroom hours, 5 courtroom observation hours, and between 2050 hours shadowing an attor ney before taking their first client We look forward to having the first set of advocates complete their training and take their first cases later this year. I am grateful to the LASH for their partnership and to Chief Judge Robert Kim and Judge Darien Nagata for their commitment to move this project forward as a way to fulfill an unmet need in the Third Circuit

CONCLUSION

In closing, I want to thank all the forum participants for their commitment to improving the administration of justice in Hawai‘i. The Judiciary greatly appreciates the opportunity the forums provide to lear n from the insights provided by the presenters and to listen to the perspectives of the bar We look forward to further collaboration with the bar on important topics of interest in the coming years

1 This project was supported by Grant No 2020TA-AX-K015 awarded by the Office on Violence Against Women (OVW), U S Department of Justice (DOJ) and Subgrant Nos 20-WF-09 and 21WF-09 awarded by the OVW, U S DOJ through the Hawai‘i Department of the Attorney General The opinions, findings, conclusions, and recommendations expressed in this publication are those of the author(s) and do not necessarily reflect the position of the state or the U S DOJ

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area due to the lack of fresh water flowing in Nā Wai ‘Ehā’s streams and into the nearshore marine waters ”29

In 2004, Maui community groups, including Native Hawaiian practitioners, petitioned the Commission on Water Resource Management (“CWRM”) to restore streamflow to Nā Wai ‘Ehā Around the same time, the Maui County Department of Water Supply, Hawaiian Commercial and Sugar Company, and the Wailuku Water company submitted water use permit applications for the same area After a combined contested case hearing, CWRM amended the IIFS for two of the Nā Wai ‘Ehā streams and substantially retained the existing IIFS for the two remaining streams. Challenging CWRM’s decision, practitioners argued that the IIFS did not properly protect their traditional and customary rights. The Court agreed. In re ‘Iao concluded that the CWRM did not satisfy the Ka Pa‘akai framework and thus “did not discharge its duty with regard to the feasibility of protecting native Hawaiian rights” because its findings and conclusions – despite mentioning that the amendment would limit Native Hawaiian practices of kalo cultivation and gathering

did not contain any information that would satisfy the second and third parts of the Ka Pa‘akai test

The prolonged fight to restore water to traditional streams and for traditional uses in Maui highlights Native Hawaiians’ continued efforts toward restoring ‘Āina Momona, a healthy and productive land and people, and increasing waiwai, collective wealth, for all of Hawai‘i

Decided a few years later, Mauna Kea Anaina Hou v. Board of Land & Natural Resources affirmed that a contested case hearing to determine Native Hawaiian traditional and customary rights is a matter of constitutional due process 30 In 2010, the University of Hawai‘i and a private non-profit corporation submitted to the Department of Land and Natural Resources a Conservation District use appli-

cation to build an astronomy observatory (the Thirty Meter Telescope, or “TMT”) on Mauna Kea’s summit. Native Hawaiian practitioners requested a contested case hearing to contest the impact the development would have on their traditional

and properly discharged its article XII, § 7 obligations 31 First, the Court determined that BLNR’s findings identified that Native Hawaiian cultural practitioners conduct numerous practices on Mauna Kea but there was “no evidence” of Native

and customary practice rights Without first holding a contested case hearing, BLNR approved the permit. On appeal, the Hawai‘i Supreme Court determined the permit was invalid – “[b]y voting on the permit before the contested case hearing was held, the Board denied the Appellants their due process right to be heard at a meaningful time and in a meaningful manner.” The Court ordered BLNR to hold a new contested case hearing for the use application

As ordered in Mauna Kea Anaina Hou, BLNR held a new contested case hearing and in 2017, the Board granted the Conservation District use permit. Practitioners appealed, arguing that BLNR did not fulfill its duties to protect their traditional and customary rights pursuant to article XII, 7 and Ka Pa‘akai, and the observatory would adversely impact their cultural practices. In In re Contested Case Hearing re Conservation Dist Use Application (CDUA) Ha-3568 for the Thirty Meter Telescope at the Mauna Kea Sci Reserve, the Supreme Court affirmed BLNR’s decision granting the developer’s permit and concluded that the state satisfied the three Ka Pa‘akai requirements

Hawaiian traditional and customary practices “within the TMT Observatory site area and Access Way,” i.e., “the relevant area.” Further, the Court opined that “in general, astronomy and Native Hawaiian uses on Mauna Kea have co-existed for many years and the TMT Project will not curtail or restrict Native Hawaiian uses ”

As to the second Ka Pa‘akai step, the Court believed that BLNR correctly “found that the TMT project will not adversely impact cultural resources, whether in the relevant area of the TMT Observatory site and Access Way, or in other areas of Mauna Kea.” The Court stated the third Ka Pa‘akai requirement need not be addressed because “Native Hawaiian rights were not found to have been exercised in the relevant area But in any event, the BLNR discussed measures that had been taken to avoid impact on Native Hawaiian rights and imposed special conditions to avoid impacts on those practices.”

In limiting its Ka Pa‘akai analysis to what it determined was the “relevant area,” the Mauna Kea Anaina Hou Court departed from cultural practitioner ’ views and arguments that actions taken in one area will inevitably impact the

Work on a Water Diversion Ditch on Maui

surrounding ‘āina, including Kānaka traditional practices and their physical and spiritual well-being.

In Flores-Case ‘Ohana v University of Hawai‘i, the Supreme Court held that Ka Pa‘akai should be applied outside of the contested case hearing context 32 In Flores-Case ‘Ohana, a family of Native Hawaiian cultural practitioners sued the University of Hawai‘i in the circuit court to challenge the constitutionality of the administrative rules governing Mauna Kea’s summit In considering these issues, the circuit court submitted a reserved question to the Hawai‘i Supreme Court:

In a challenge to the constitutionality of administrative rules based on a violation of Article XII, § 7 of the Hawai‘i State Constitution, does the burden of proof shift to the government defendant to prove that the rules are reasonable and do not unduly limit the constitutional rights conferred in Article XII, § 7? If so, what standards govern its application?

The majority of the Court held that when a Native Hawaiian practitioner challenges an administrative rule as unconstitutional under Article XII, § 7, the practitioner bears the burden to show that the agency’s analysis undertaken during rulemaking did not adequately identify, consider, or reasonably protect traditional and customary practices Writing for the majority, Chief Justice Recktenwald (joined by Wilson, J , with McKenna, J concurring) also held that administrative rulemaking implicates traditional and customary practices and thus “the Ka Pa‘akai framework for contested case hearings applies to administrative rulemaking ”

While the majority held the Ka Pa‘akai framework must be considered in rulemaking, the Court did not reach a majority decision on the way the state must show its work, i e , whether it must produce written statements summarizing its considerations As a result, though the Court clarified Ka Pa‘akai’s reach, questions remain as to exactly how state agencies must conduct and share its

considerations when promulgating administrative rules.

These post-Ka Pa‘akai cases reveal that constitutional protections for traditional and customary practices are meaningful in Hawaii, imposing meaningful obligations on the state Additionally, these cases show that when protections are upheld, the impact can include benefits for the protection and stewardship of the environment At the same time, these cases demonstrate further compromises in law with protections narrowed to traditional and customary practices of activity, but likely not traditions of non-activity or non-use of an area, and to “relevant areas” that may not be sufficiently scoped from the perspective of Hawaiian cultural practice experts.

The sum effect of this jurisprudence is the Native Hawaiian community or practitioner that relies upon traditional and customary practice protections must exercise significant vigilance in monitoring for harmful state action. If they seek to object to proposed or ongoing state action, they could face numerous legal hurdles, uncertainties, and lengthy litigation to assert traditional and customary practice rights The state of the law presents significant uncertainty from case to case as to whether the protections will be ultimately effective in realizing the goals of convention delegates and enabling the wellbeing of Hawaiian culture and communities

Conclusion

For post-overthrow Hawai‘i, the 1978 Constitutional Convention was a positive and promising milestone for the advancement of Native Hawaiian justice and well-being. As detailed above, Native Hawaiian advocates at the convention sought to articulate and protect what Kānaka Maoli have known since time immemorial – that the well-being of Kānaka is intrinsically tied to their traditional practices that, in turn, are inextricably tied to their pilina and kinship to the environment.

At the convention, to ensure that

well-being could be achieved, Native Hawaiians and their allies secured protections for the benefit of all Hawai‘i and all who call it home Realizing the promise of these protections, however, is a work in progress, already marked by deep compromises in Hawai‘i’s constitutional law.

As the third generation of people in Hawai‘i from all sectors, including cultural practitioners, community leaders, legal professionals, public officials, and industry take on the kuleana of stewarding the land and the law since the convention, the vision and goals of our kupuna from the 1970s and beyond must anchor the work In that history is a call for change: a change from bitter disputes and insufficient compromises to approaches and law allowing for our collective wellness, grounded in Hawaiian values that have always distinctively served and distinguished our state We can do this if we embrace the learnings of the last forty-five years, come together as a society, and recognize that this is what is good for all Hawai‘i.

1 In this article, the indigenous people of Hawai‘i are interchangeably referred to as “Hawaiian,” “Native Hawaiian,” “Kānaka Maoli” and “Kanaka ” The Native Hawaiian people as a nation are referred to as the “lāhui ”

2 See Doron Shultziner & Itai Rabinovici, Human Dignity, Self-Worth, and Humiliation: A Comparative Legal-Psychological Approach, 18 PSYCHOL PUB POL‘Y & L 105, 114 (2012) (assuming that “care for human well-being underlies the purpose of law ”); Aristotle, Politics, Bk 1, pt 2 (Benjamin Jowett trans ) (“When several villages are united in a single complete community large enough to be nearly or quite selfsufficing, the state comes into existence, originating in the bare needs of life, and continuing in existence for the sake of a good life ” (empahsis added)); Paul Dalziel, Caroline Saunders, & Joe Saunders, Wellbeing Economics: The Capabilities Approach to Prosperity 1 (2018) (“The primary purpose of economics is to contribute to enhanced well-being of persons.”); and Louis Lasagna, Modern Hippocratic Oath (1964), recovered from Peter Tyson, The Hippocratic Oath Today, PBS NOVA (2001), https://www pbs org/wgbh/nova/article/ hippocratic-oath-today/ (“I will remember that I do

(Continued on pa ge 30)

Grief Support Group

Grief is a universal experience, and we all struggle with it. Sometimes we are unsure if our feelings are unique to us or whether we are justified in feeling them. By sharing our stories in a safe, confidential, and caring environment, we can find strength and additional resources to deal with our loss. The Attorneys and Judges Assistance Program is starting a support group for Hawaii’s attorneys. If you are interested in participating or have any questions, please don’t hesitate to contact Liam at director@hawaiiaap.com or 808-260-6415.

CASE NOTES

Appeal Pointer

A

www.hawaiiaap.com 212 Merchant St., Ste. 200 Honolulu, HI 96813 Phone: 808-531-2880 Toll free: 1-800-273-8775

Supreme Court Family

JK v. DK, No. SCWC-18-0000844, August 3, 2023, (Eddins, J ) In this divorce case, the Family Court ordered a default judgment in favor of Joel D Katz (Husband) as a Hawaii Family Court Rules Rule 37(b)(2) discovery sanction against Dania N Katz (Wife) Later, the court refused to set aside the default, and then denied Wife’s motion to reconsider. In a memorandum opinion with a dissent, the ICA affir med the family court The Hawaii Supreme Court concluded that the family court erred when it declined to set aside the default judgment under Haw Family Ct R Rule 60(b)(1) for excusable neglect. The court also erred by entering default as a discovery sanction. The Hawaii Supreme Court vacated the family court’s orders and remanded to the family court

C O U R T B R I E F S

Justice Sabrina McKenna Receives ABA Commission on Women in the Profession’s Most Prestigious Award

traditionally marginalized people with compassion, positivity, and optimism.”

“I am extremely humbled by this recognition,” Justice McKenna said “I have been the beneficiary of the vision and leadership of women like Patsy Takemoto Mink, whom I consider my hero and guiding inspiration, to serve our community and motivate women to lear n the law and use it to better the world ”

appointment, please submit a letter indicating your interest and a resume by Friday, December 1, 2023 to:

Judge Ronald G Johnson

Circuit Court of the First Circuit

777 Punchbowl Street

Honolulu, Hawaii 96813

Circuit Court of the First Circuit Criminal Division Seeking Attorneys

Hawaii Supreme Court Justice

Sabrina S. McKenna received the 2023 Margaret Brent Women Lawyers of Achievement Award on August 6 at the 33rd annual ceremony in Denver, Colorado

Presented by the American Bar Association’s Commission on Women in the Profession, it recognizes five outstanding women lawyers who have achieved professional excellence and paved the way for other women in the legal profession

Justice McKenna was nominated by the National Asian Pacific American Bar Association, which noted that she “is a globally recognized trailblazer, a staunch advocate for diversity and inclusion in the legal profession, and a true role model, mentor, and heroine to women, especially in the LGBTQ and underrepresented communities She epitomizes the spirit of Margaret Brent through her values, lived experiences, courage, and most importantly, her tireless dedication to inspiring and uplifting women and

In her acceptance speech, Justice McKenna spoke about the importance of state courts and remarked, “I humbly accept this award on behalf of all the women lawyers and judges in Hawaii as well as all the women who have served and continue to serve as state court judges.”

Seeking Applicants for First Circuit Independent Grand Jury Counsel

The Circuit Court of the First Criminal Division is seeking attor neys interested in serving as court-appointed counsel in criminal cases.

A pplicants must be licensed to practice law in the State of Hawaii and have experience in litigation and/or criminal practice A pplicants should indicate whether they have a preference of offense classifications for which they would like to be considered

Attor neys from all islands are welcome to apply by submitting a cover letter and resume to:

Judge Shirley M Kawamura

Criminal Administrative Judge

Article I, Section 11 of the Constitution of the State of Hawaii establishes that whenever a g rand jury is impaneled, an independent counsel shall be appointed, as provided by law, to advise the members of the g rand jury regarding matters brought before it

In accordance with Hawaii Revised Statutes (§612-51 to §612-57), the chief justice of the state supreme court appoints g rand jury counsel for the four judicial circuits of the state, selecting from among those individuals licensed to practice law in Hawaii who are not public employees

To be considered for a one-year

777 Punchbowl St

Honolulu, HI 96813

Phone: 808-539-4330

Email: 12thDivision.1CC@courts.hawaii.gov

Holden Appointed Per Diem Judge

Miriah E Holden was recently appointed per diem judge of the District Court of the First Circuit Her ter m is September 1, 2023 to August 31, 2024.

not treat a fever chart, a cancerous growth, but a sick human being, whose illness may affect the person‘s family and economic stability My responsibility includes these related problems, if I am to care adequately for the sick ”)

3 U S Census Bureau (2021) 2023 American Community Survey Retrieved from https://data census gov/table?t=019:022:051:052& g=040XX00US15&y=2021&d=ACS+1-Year+Estimates+Selected+Population+Profiles See also, “Trouble in Paradise: Native Hawaiians being forced out of expensive island life,” ABC News, June 8, 2023, (“The American Community Survey 2021 Survey finding that 310,000 Native Hawaiians live on the Hawaiian Islands compared to 370,000 living in the continental United States ”)(available online at https://abcnews go com/US/trouble-paradise-native-hawaiians-forced-expensive-islandlife/story?id=99896657) This article was developed and drafted prior to the tragic wildfires that impacted Lahaina and all the people of Maui in August 2023 Accordingly, this article does not go into depth on the specific impact of Native Hawaiian rights, water, and natural environment management on Lahaina, however, the authors acknowledge with respect for Maui communities that historical and current legal limitations on Native Hawaiian rights and environmental law contributed to the unfathomable tragedy that has unfolded there

4 International Labour Organization, Indigenous and Tribal Peoples Convention, C169 Art 7(1) (1989)

5 Victoria Tauli-Corpuz, Summary report submitted to the Permanent Forum on Indigenous Issues, Indicators of well-being, poverty and sustainability relevant to indigenous peoples, E/C 19/2008/9 at 2 (2008)

6 Whetu Wereta & Darin Bishop, Paper submitted to the Permanent Forum on Indigenous Issues Meeting on Indigenous Peoples and Indicators of WellBeing, 22-23 March 2006, Towards a Maori Statistics Framework, at 8 (2006)

7 Kūkulu Kumuhana Planning Committee, Creating Radical and New Knowledge to Improve Native Hawaiian Wellbeing 3 (2017)

8 E S Craighill Handy et al , Native Planters in Old Hawaii Their Life, Lore, and Environment at 85-88 (1972)

9 James Kāwika Riley, Dissertation, Ke Kumu o Kānāwai ‘Awa‘Awa: The Origins and Expansion of the Native Hawaiian Congressional Policyscape: A Multi-Era Analysis of Native Hawaiian Efforts to Influence the U S Congressa 62–64 (2022)

10 See, e g , Hiram Bingham, A Residence of TwentyOne Years in the Sandwich Islands; or, The Civil, Religious, and Political History of Those Islands: Comprising a Particular View of the Missionary Operations Connected with the Introduction and Progress of Christianity and Civilization Among the Hawaiian People (1847) (“[T]he appearance of destitution, degradation, and barbarism, among the chattering, and almost naked savages, whose heads

and feet and much of their sunburnt swarthy skins, were bare, was appalling.”).

11 Troy J H Andrade, Hawai’i ’78: Collective Memory and the Untold Legal History of Reparative Action for Kānaka Maoli, 24 U PA J L & SOC CHANGE, 85, 126 (2021)

12 1 Proceedings of the Constitutional Convention of Hawaii of 1978, vii – viii, x (1980)

13 Office of Hawaiian Affairs, Legal Basis (visited June 13, 2023) https://www oha org/about/abouthistory/aboutabouthistoryconstitution/#: :text=OHA% 20was%20established%20through%20Article%20 XII%20of%20the,promoting%20and%20protecting%20the%20rights%20of%20Native%20Hawaiians

14 See Department of Hawaiian Homelands (visited August 8, 2023) https://dhhl hawaii gov/kuhio/

15 See Comm of the Whole Debates on Hawaiian Affairs Prop No 12 reprinted in 2 Proceedings of the Constitutional Convention of Hawaii of 1978 (1980) at 426 and Standing Comm Rep No 57 on Hawaiian Affairs Prop No 12 reprinted in I Proceedings of the Constitutional Convention of Hawaii of 1978 (1980) at 640

16 See Second Reading, Comm of the Whole Rep No 12 on Hawn Aff Prop No 12, reprinted in 1, 278

17 In Chapter I of the new laws of the kingdom it states that the laws of man and chief are not simply cast away, there are a multitude of laws and people must learn them, and writing and documenting them is the best way to guide the populace through these laws Kumu Kanawai: A Me Na Kanawai O Ko Hawaii Pae Aina Ua Kauia I Ke Kau Ia Kamehameha III (1841) Paragraph 3 of the law explains that the Chief Justice will determine which law is the most appropriate if an old law contradicts a new law Id

18 See Department of Hawaiian Homelands, (visited August 8, 2023) available at https://dhhl hawaii gov/kuhio/.

19 Richard Nelson III, Kaliko Chun, James Akiona, Sr , Sherilyn Adams, Kelii Ioane Jr , and Charles Aipia, Plaintiffs, v Hawaiian Homes Commission, the Department of Hawaiian Home Lands, Micah Kane in his official capacity as Chair of the Hawaiian Homes Commission, Perry Artates, Billie Baclig, Donald S.M. Chang, Stuart Hanchett, Malia Kamaka, Francis LUM, Trish Morikawa, and Milton PA, in their capacities as members of the Hawaiian Homes Commission, Georgina K Kawamura, in her official capacity as the State Director of Finance, and the State of Hawai‘i, Defendants , 2007 WL 9710195 (Hawai‘i Cir Ct )

20 Kalima, et al v State, et al , Civil No. 99-4771-12 LWC (First Cir Haw )

21 Nelson v Hawaiian Homes Comm’n, 127 Haw 185, 205, 277 P 3d 279, 299 (2012)

22 The Ka Huli Ao Center for Excellence in Native Hawaiian Law at the University of Hawai’i Richardson School of Law publishes and maintains a detailed legal primer on traditional and customary rights in Hawai’i This primer is a rich, detailed re-

source on the state of traditional and customary practice law The primer is available at no-cost online at https://drive google com/file/d/1OT3nRK1rU0DstNA0sb7JhWDLsHRKh1m/view?pli=1

23 Kalipi v Hawaiian Trust Co , 66 Haw 1, 656 P 2d 745 (1982)

24 Pele Defense Fund v Paty, 73 Haw 578, 837 P 2d 124 (1992).

25 Public Access Shoreline Hawaii v Hawaii County Planning Commission, 79 Hawai‘i 425, 903 P 2d 1246 (PASH) (1995)

26 Ka Pa‘akai O Ka ‘Aina v Land Use Commission, 94 Hawai‘i 31, 7 P 3d 1068 (2000)

27 In re ‘Iao Ground Water Mgmt Area High-Level Source Water Use Permit Applications, 128 Hawai‘i 228, 287 P 3d 129 (2012)

28 D Kapua‘ala Sproat, Wai Through Kānāwai: Water for Hawai‘i’s Streams and Justice for Hawaiian Communities, 95 MARqUETTE L R 127, 143 (2011)

29 Background on Nā Wai ‘Ehā, Earthjustice, https://earthjustice.org/feature/background-on-nawai-eha (last visited on August 14, 2023)

30 Mauna Kea Anaina Hou v Board of Land & Natural Resources, 136 Hawai‘i 376, 380, 363 P 3d 224 (2015)

31 In re Contested Case Hearing re Conservation Dist Use Application (CDUA) Ha-3568 for the Thirty Meter Telescope at the Mauna Kea Sci Reserve, 143 Hawai‘i 379, 431 P 3d 752 (2018)

32 Flores-Case ‘Ohana v University of Hawai‘i, 153 Hawai‘i 76, 526 P 3d 601 (2023)

The authors are attorneys at the Native Hawaiian Legal Corporation (“NHLC”) The authors wish to mahalo all their colleagues at NHLC for their assistance in editing this article, and in particular mahalo Philip de Groot, an NHLC legal intern who completed substantial research for this effort The authors also mahalo all in the community, including, past and present NHLC clients, board members, staff and board alumni, allies, and partners that have stood throughout the past 45 years for Native Hawaiian identity, culture, health, and wellness using legal advocacy

AT TO R N EY WA N T E D

A S S O C I AT E AT TO R N E Y ( C i v i l L i t i g a t i o n )

Established downtown law firm is seeking a litigation associate attorney 2-4 years experience preferred but will consider well-qualified entry level candidate Admission to Hawaii Bar or awaiting results required. Competitive salary commensurate with experience and qualifications and excellent benefits Please email cover letter, resume, and writing sample to: info@macdonaldrudy com No phone calls please All submissions will be held in strict confidence

AT TO R N EY ( KO N A ) Carlsmith Ball seeks an a t t o r n e y w i t h a t l e a s t t h r e e ( 3 ) y e a r s o f experience of general practice to join our Kona office Areas of practice to include a variety of both litigation and transactional matters Must be licensed to practice law in Hawaii Please send cover letter, resume, law school transcript and writing sample to recruiting@carlsmith com Please do not contact office and/or attorneys directly.

AT TOR N EY R EF ER R ALS The State of Hawaii Office of Consumer Protection (OCP) is seeking the names of attorneys interested in representing consumers in connection with cases being investigated or prosecuted by OCP on behalf of the State under Hawaii’s Mortgage Rescue Fraud Prevention Act OCP intends to compile a list of attorneys that can be shared with consumers in need of representation By requesting inclusion on the list, you agree that OCP may share your name with consumers seeking representation While OCP may seek restitution or other remedial relief on behalf of a par ticular consumer, OCP d o e s n o t a d v i s e o r o t h e r w i s e r e p r e s e n t individual consumers Consumers sometimes seek a resolution that is more transactional in nature, but sometimes seek a resolution through litigation Anyone interested in desiring to be included on OCP’s attorney referral list should have experience with counselling clients on real proper ty matters, identifying both legal issues and proposed solutions, negotiating settlements, documenting and closing real proper ty transactions, and litigating cases involving real property disputes A basic familiarity with HRS Chapters 480E or 480 is also desirable For anyone wishing to be considered for inclusion on this list of referral

attorneys, or to inquire about being included in the list, please email OCP attorney James Evers at jevers@dcca hawaii gov

COATES F R EY & HACKET T, one of Hawaii’s l a r g e s t Fa m i l y L a w F i r m s , s e e k s a s s o c i a t e attorney with a motivated passion for and/or experience in divorce/family law and the TRO process and procedures. Asian language(s) skills/proficiency is a plus but not mandatory Join a kama’aina law firm with good benefits, advancement oppor tunities and a suppor tive atmosphere Competitive salary/bonus Email cover letter and resume ( t o m a n a g e m e n t @

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LYONS, BRANDT, COOK & HIRAMATSU seeks civil litigation attorney to join and g row our team of lawyers Responsibilities include all aspects of case investigation and discovery, legal research and writing, court appearances and oral arguments, trial preparation and par ticipation, and appellate briefing and arguments Preferred applicants have litigation experience, excellent verbal and written communication and advocacy skills, are highly detail oriented and organized, have solid judgment and strong integrity, and are able to work independently and as part of a team Applicants must be licensed to practice law in Hawaii and in good standing Salary commensurate with experience. Benefits offered Please send letter of interest and resume to hr@lbchlaw com

R EAL ESTATE AT TOR N EY We are seeking an attorney to join our firm’s real estate and project development practice g roup Candidates should have a minimum of three years of experience We offer a competitive salary, bonus, and benefits, and the opportunity to w

REGULATORY ATTORNEY

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