Real Estate & Property Law

"Ceded Lands" Case Round-Up

By Robert Thomas (inversecondemnation.com)

As the Supreme Court oral argument in the "ceded lands" case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert. granted Oct. 1, 2008), draws nigh, public interest in the case is peaking. We will be covering the arguments, which begin at 10am EST (5am HST) on Wednesday, February 25, 2009. The Obama Administration will also have 10 minutes of argument, supporting the State of Hawaii.

There is no live stream or direct coverage, but the transcript is usually released later in the day and we will post it here -- along with some thoughts -- as soon as it is released.

In the meantime, a couple of updates:

• The Hawaii Legislature appears to be on the verge of enacting legislation to halt any transfer of the ceded lands (see "Ceded lands bill advances; lets Legislature stop sales" and "Ceded lands fight headed to an artful compromise")

• Last Sunday's Honolulu Advertiser published competing op-eds about the case, one by Hawaii Attorney General Mark Bennett (who will be arguing the case next Wednesday for the State), "Preserving state's legal right to use ceded lands for the benefit of all of Hawaii's people is crucial," and one by former Hawaii governor John Waihee, "Lingle should reconsider appeal, as it undercuts our state's sovereignty and there is little to gain." Bennett argues that the 1993 Apology Resolution did not cloud the state's title to the ceded lands, and all of Hawaii's people are the beneficiaries of the ceded lands trust established pursuant to section 5(f) of the Admissions Act.  Governor Waihee, on the other hand, argues that this is a local matter and that the Lingle Administration jeopardized local independence when it asked for Supreme Court review.  He concludes that Governor Lingle should "withdraw" the appeal. [Disclosure: I helped author an amicus brief supporting the State's position.] I'm not sure when or how the "withdraw the appeal" canard got started, but it has apparently taken hold.  As I noted in this post from November 2008, it was highly unlikely even then that having expended a huge amount of legal capital convincing the Supreme Court to take the case and rallying support from the federal government and 29 other states to bolster its arguments, that the State would consider withdrawing the petition. A withdraw of the petition is even more unlikely on the eve of argument, even if the Legislature passes a statute prohibiting the State from doing anything with the ceded lands absent a 2/3 vote.  

For more about the ceded lands case, including the Hawaii Supreme Court decision under review, all of the merits and amicus briefs, and links to media reports and commentary, visit our ceded lands page.

Full post as published by inversecondemnation on February 19, 2009 (boomark / email).