STAND. COM. REP. NO. 381-06
Honolulu, Hawaii
, 2006
RE: H.B. No. 2204
H.D. 1
Honorable Calvin K.Y. Say
Speaker, House of Representatives
Twenty-Third State Legislature
Regular Session of 2006
State of Hawaii
Sir:
Your Committee on Hawaiian Affairs, to which was referred H.B. No. 2204 entitled:
"A BILL FOR AN ACT RELATING TO THE OFFICE OF HAWAIIAN AFFAIRS,"
begs leave to report as follows:
The purpose of this bill is to further the Legislature’s attempt to determine the pro rata portion of the public land trust to be transferred to, managed, and administered by the Office of Hawaiian Affairs (OHA) for the betterment of the conditions of native Hawaiians pursuant to Article XII, Section 6 of the Hawaii Constitution. Specifically, this bill establishes and appropriates an unspecified sum of interim revenue to be expended by OHA each fiscal year for the betterment of the conditions of native Hawaiians.
Alu Like and Papa Ola Lokahi testified in support of this measure. OHA, the Department of the Attorney General (AG), Native Hawaiian Legal Corporation, and Native Hawaiian Hospitality Association supported a yet to be determined settlement between the State and OHA on the amount OHA is entitled to as its pro rata portion of revenues from the public land trust. A concerned individual testified in opposition.
In Trustees of the Office of Hawaiian Affairs v. Yamasaki, 69 Haw. 154, 737 P.2d 446 (1987), the Hawaii Supreme Court determined that the issue of what constitutes OHA's pro rata portion of all the funds derived from the public land trust is a political question. The Supreme Court stated that it could not find any "judicially discoverable and manageable standards" that could be used to resolve the issue. Id., at 175, 737 P.2d at 459. Accordingly, the Supreme Court declined to rule upon the substance of the case, holding that the issues presented were "of a peculiarly political nature and therefore not meet for judicial determination." Id.
Fourteen years later, the Hawaii Supreme Court reaffirmed its holding in Yamasaki in Office of Hawaiian Affairs vs. State of Hawai'i, 96 Haw. 388, 31 P.3d 901 (2001). In that case, the Supreme Court stated in pertinent part:
[T]he State's obligation to native Hawaiians is firmly established in our constitution. How the State satisfies that constitutional obligation requires policy decisions that are primarily within the authority and expertise of the legislative branch. As such, it is incumbent upon the legislature to enact legislation that qgives effect to the right of native Hawaiians to benefit from the ceded lands trust.
Id. at 401, 31 P.3d at 914 (emphasis in original). In making this statement, the Supreme Court relied upon Article XVI, Section 7 of the Hawaii Constitution, which reads:
Any trust provisions which the Congress shall impose, upon the admission of this State, in respect of the lands patented to the State by the United States or the proceeds and income therefrom, shall be complied with by appropriate legislation. Such legislation shall not diminish or limit the benefits of native Hawaiians under Section 4 of Article XII.
As stated earlier, the purpose of this measure is to further the Legislature’s constitutional obligation to implement its constitutional obligation to define OHA's pro rata portion of funds derived from the public land trust. As a preliminary matter, it should be noted that in recent years, the issue of whether the completion of an inventory of lands comprising the public land trust is necessary to determine OHA's pro rata portion has been debated. It is the understanding of your Committee, however, that no inventory is necessary, based on the testimonies of representatives from OHA and AG on this measure.
Your Committee has amended this bill by:
(1) Inserting a findings and purpose section;
(2) Specifying that the income and proceeds from the pro rata portion of the public land trust for expenditure by the OHA for each fiscal year beginning with fiscal year 2005-2006 shall be $15,100,000;
(3) Appropriating $17,500,000 for fiscal year 2005-2006, to pay OHA receipts from the use of lands within the public land trust that should have been transferred, but were not transferred previously to OHA between July 1, 2001, and June 30, 2005;
(4) Requiring the Department of Land and Natural Resources to account for receipts generated from the public land trust, and appropriating $250,000 for that purpose;
(5) Specifying that this measure will not affect the claims of native Hawaiians to the income and proceeds of a pro rata portion of the public land trust; and
(6) Making technical, nonsubstantive amendments for style, clarity, and consistency.
Section 2 ___ specifies that beginning in fiscal year 2005-2006, and until further legislative action is taken, the income and proceeds from the pro rata portion of the public land trust for expenditure by OHA pursuant to Article XII, Section 6 of the Hawaii Constitution shall be $15,100,000 per fiscal year. This amount shall be transferred from various state departments and agencies to OHA in four equal quarterly installments via voucher payments. According to the AG:
The annual $15.1 million share . . . for annual transfer to OHA is based on the sums actually transferred during these four fiscal years, the sums of analogous receipts that could have been transferred from the health and housing corporations and the University, the upward trend of these receipts over the last four years, and negotiation and fairness considerations.
See Testimony of the AG to the House Committee on Hawaiian Affairs, dated February 1, 2006, p. 3. The AG supplemented his written testimony at the hearing by explaining that the $15,100,000 also includes certain ancillary receipts from the state airports.In addition, even though airports receipts themselves cannot be used to pay the amount, the Attorney General also testified that the $15,100,000 included certain ancillary receipts from the airports. See Testimony of the AG, p. 2.
The approximate amount of funding actually transferred to OHA pursuant to Executive Order No. 03-03 and Act 34, Session Laws of Hawaii 2003, was as follows:
FYs 2002-2003 2004 2005
DAGS State Parking Revolving Fund $32,757 $22,896 $23,730
DOA Agricultural Park Special Fund
General Fund
$74,921 $46,006 $113,505
DBED&T Foreign Trade Zone Special
Fund
HCDA Revolving Fund
NELHA Special Fund
$357,043 $230,090 $253,045
DOE Use of School Facilities $50,966 $48,400 $45,098
Special Fund
DLNR Boating Special Fund
Special Land & Development Fund
State Parks Special Fund
Beach Restoration Special Fund
General Fund
$2,554,338 $2,274,483 $2,774,768
DOT Harbors Special Fund $9,049,700 $6,480,000 $6,866,384
Act 34, SLH 2002 $2,041,852 _________ ________
General Fund
Annual Totals $14,161,577 $9,101,875 $10,076,530
The approximate amounts of "analogous" ceded land receipts wereas as follows:
FYs 2002-2003 2004 2005
Hawaii Health Systems Corporation $665,687 $471,650 Unverified
Hilo Medical, Kula Hospital,
Samuel Mahelona
Non-Patient Food Sales
Catering Revenue
Parking Revenue
Data processing Services Revenue
Medical Records Abstract Sales
Non-Patient Room Rentals
Telephone & Telegraph Revenue
Restricted and Non-Restricted
Contributions
Employee Housing Rent Revenue
Clinical Rent Revenue
Other Space Rental
University of Hawaii $1,293,852 $1,182,121 Unverified
Manoa and Hilo Campuses
Parking
Faculty Housing
Non-Student Housing Rentals,
including food and vending
machine,telephone
commissions/collections
Hilo Bookstore – logo products,
sundries but not books or
school supplies
Other Revenue
HCDCH Housing $80,626 $40,091 $32,625
Public School Faculty
Housing Rentals
Public Rental Housing
Laundromat/Vending
Machine Receipts
Public Rental Housing
Antennae Rental Receipts
___________ ___________ _________
Annual Totals $2,040,165 $1,693,862 Unverified
The approximate amounts of ancillary receipts from the state airports were as follows:
DOT Ancillary Airports Receipts From Ceded Lands
FYs 2002-2003 2004 2005
HIA Terminal Rental Revenue $2,598,460 $1,290,018 $1,068,268
HIA Terminal Concession Revenue $857,152 $503,754 $525,671
Non-HIA Aeronautical Revenue $1,158,094 $671,564 $712,015
Non-HIA Concession/Other $18,241,417 $ 9,655,042 $10,159,033
Terminal Revenue
Annual Total Receipts $22,855,123 $12,120,378 $12,464,987
20% Share $4,571,025 $2,424,076 $2,492,997
Section 4 appropriates the sum of $17,500,000 to OHA in fiscal year 2005-2006. This one-time appropriation
. . . raise[s] the [amount] of ceded land receipts actually transferred to OHA during the fiscal years 2002 through 2005. The one-time appropriation of general funds is roughly equivalent to analogous rent-type receipts for the use of ceded lands collected by the Hawaii Health Systems Corporation, the Housing and Community Development Corporation of Hawaii, and the University of Hawaii, etc. during the relevant period which were not paid for legal reasons, interest, and negotiation and fairness considerations.
Id. at 4. In other words, this appropriation represents a "catch-up" of amounts that were underpaid during the specified time period.
Section 5 requires the DLNR to provide an annual accounting of revenues derived from the public land trust. At the present time, no single state department or agency is responsible for compiling such data. A single accounting will provide the Legislature, OHA, the general public, and even the State administration, with a clearer financial picture of the public land trust.
As affirmed by the record of votes of the members of your Committee on Hawaiian Affairs that is attached to this report, your Committee is in accord with the intent and purpose of H.B. No. 2204, as amended herein, and recommends that it pass Second Reading in the form attached hereto as H.B. No. 2204, H.D. 1, and be referred to the Committee on Finance.
Respectfully submitted on behalf of the members of the Committee on Hawaiian Affairs,
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____________________________ SCOTT K. SAIKI, Chair |
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