Real Estate & Property Law

State's Reply in Ceded Lands Case

By Robert Thomas (inversecondemnation.com)

The State of Hawaii has filed its Reply Brief to the Office of Hawaiian Affairs' Brief in Opposition in the "ceded lands" case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert. petition filed Apr. 29, 2008).  The State has sought a writ of certiorari to review of the decision by the Hawaii Supreme Court in Office of Hawaiian Affairs v. Housing and Community Dev. Corp. of Hawaii, 117 Haw. 174, 177 P.3d 884 (Jan. 31, 2008). 

In that case, the Hawaii Supreme Court, relying on the "Apology Resolution," enjoined the State of Hawaii from conveying 1.2 million acres of state-owned land until a political settlement is reached with Native Hawaiians about the status of that land.  The Reply starts off by pointing out:

Respondents do not even dispute that the Hawaii Supreme Court was wrong on the merits in construing the federal Apology Resolution to strip the State of essential attributes of sovereignty over almost all state-owned lands.  Respondents offer no defense of that construction because it is indefensible.  Respondents instead suggest, in effect, that precisely because the Apology Resolution cannot support the result below, the state court must have relied on state law instead.  But the court's interpretation of the Apology Resolution was both indefensible and the primary basis for its judgment. The result is an unprecedented affront to state sovereignty, committed in the name of federal law, and only this Court can undo the damage.

Reply Brief at 1 (emphasis original).

The State of Hawaii's cert petition is here, Pacific Legal Foundation's amicus brief supporting cert is here, the brief of 29 states supporting Hawaii is here, and the amicus brief of the New Mexico Commissioner of Public Lands supporting cert is here.

The State's petition is scheduled to be considered by the Court at its September 29, 2008 conference.

Full post as published by inversecondemnation on July 18, 2008 (boomark / email).