1.
2.

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

201. [Definitions.]
202. Department officers, staff, commission, members, compensation
203. Certain public lands designated "available lands."
204. Control by department of "available lands," return to board of land and natural resources,          when; other lands, use of
204.5. Additional powers
205. [Sale or lease, limitations on.]
206. [Other officers not to control Hawaiian home lands; exception.]
207. Leases to Hawaiians, licenses
208. Conditions of leases
209. Successors to lessees
210. [Cancellation of leases.]
210.5. REPEALED
211. [Community pastures.]
212. Lands returned to control of board of land and natural resources
213. Funds and accounts
213.5. Establishment of special fund
213.6. Hawaiian home lands trust fund
214. Purposes of loans; authorized actions
215. Conditions of loans
216. Insurance by borrowers; acceleration of loans; lien and enforcement thereof
217. [Ejectment, when: loan to new lessee for improvements.]
218. Repealed
219. Agricultural and aquacultural experts
219.1. General assistance
220. Development projects; appropriations by legislature; bonds issued by legislature; mandatory         reservation of water
220.5. Development by contract; development by project developer agreement
221. Water
222. Administration
223. [Right of amendment, etc.]
224. Sanitation and reclamation expert
225. Investment of funds; disposition
226. Qualification for federal programs
227. Enterprise zones

401.
402.

501. Definitions. [For effective date see note.]
502. Subdivision, improvement, and lease of Hawaiian home lands. [For effective date see note.]
503. Term, rent, and other conditions of the homestead general lease. [For effective date see note.]
504. Qualifications of original lessee. [For effective date see note.]
505. Individuals not eligible to receive an original homestead general lease. [For effective date see         note.]
506. Award of homestead general leases; notification of applicants on homestead waiting lists;        disposition by rent. [For effective date see note.]
507. Conversion of homestead lease to homestead general lease. [For effective date see note.]
508. Transfer of title by bequest, devise, intestate succession, or operation of law, and upon         foreclosure. [For effective date see note.]
509. Notice of breach or default. [For effective date see note.]
510. Rights of holder of security interest. [Effective date see note.]
511. Cancellation of homestead general lease. [For effective date see note.]
512. Restrictions on transfers; appraisals; waiver when. [For effective date see note.]
513. Approval by department required. [For effective date see note.]
514. Receipts from homestead general leasing and other sources. [For effective date see note.] 515. Administration. [For effective date see note.]
516. Repeal date. [For effective date see note.]

     Editor's Note. - This Act is now part of the Hawaii Constitution and is subject to amendment or repeal as prescribed in Article XII of the Constitution.

     Bracketed section headings have been inserted and are not official.

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

     As to the appropriation of funds to provide means to remedy the State's past transfers, takings, or uses of the Hawaiian Home Lands since August 21, 1959, see 1992 Haw. Sess. Laws, Act 316, as amended by 1993 Haw. Sess. Laws, Act 352.

§ 1.

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

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

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

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

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

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

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

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

     For provision that Chapter 174C, the State Water Code, shall not be construed to amend or modify rights under this act, see 174C-101.

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

     The Hawaii Homes Commission Act in providing land for native Hawaiians did not create a suspect classification which offends the constitution and thus an action stating that such act deprives persons of their equal protection rights under the fourteenth amendment by creating preferences solely based on race lacked merit. Naliielua v. Hawaii, 795 F. Supp. 1009 (D. Haw. 1990), aff'd, 940 F.2d 1535 (9th Cir. 1991).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

§ 2.

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

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

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

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

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

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

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

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

     (5) Providing financial support and technical assistance to native Hawaiian beneficiaries of this Act so that by pursuing strategies to enhance economic self-sufficiency and promote community-based development, the traditions, culture and quality of life of native Hawaiians shall be forever self-sustaining.

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

     (d) Nothing in this Act shall be construed to:

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

     (2) Alter the obligations of the United States and the State of Hawaii to carry out their public trust responsibilities under section 5 of the Admission Act to native Hawaiians and other descendants of the indigenous citizens of the Kingdom of Hawaii.

     [L 1990, c 349, § 1]

     Editor's Note. - 1990 Haw. Sess. Laws, Act 349, which enacted this section, was permitted to become law without the Governor's signature on July 11, 1990. Section 3 of the Act provides: "This Act shall take effect upon its approval by the Governor and with the consent of the United States Congress." As of the publication of this 1995 Supplement, consent of Congress apparently had not been obtained.

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

§ 201. [Definitions.]

     (a) That when used in this title:

     (1) The term "commission" means the Hawaiian Homes Commission;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

     (b) The provisions of section 76-16, Hawaii Revised Statutes, shall apply to the positions of first deputy and private secretary to the chairman of the commission. The department may hire temporary staff on a contractual basis not subject to chapters 76, 77, and 78, Hawaii Revised Statutes, when the services to be performed will assist in carrying out the purposes of the Act. These positions may be funded through appropriations for capital improvement program projects and by the administration account, operating fund, or native Hawaiian rehabilitation fund. No contract shall be for a period longer than two years, but individuals hired under contract may be employed for a maximum of six years; provided that the six-year limitation shall not apply if the department, with the approval of the governor, determines that such contract individuals are needed to provide critical services for the efficient functioning of the department. All other positions in the department shall be subject to chapters 76 and 77, Hawaii Revised Statutes.

     All vacancies and new positions which are covered by chapters 76 and 77, Hawaii Revised Statutes, shall be filled in accordance with sections 76-23 and 76-31, Hawaii Revised Statutes, provided that the provisions of these sections shall be applicable first to qualified persons of Hawaiian extraction.

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

     Editor's Note. - Section 5 of 1989 Haw. Sess. Laws, Act 265, provides: "The provisions of the amendments made by this Act to the Hawaiian Homes Commission Act, 1920, as amended, are declared to be severable, and if any section, sentence, clause, or phrase, or the application thereof to any person or circumstances is held ineffective because there is a requirement of having the consent of the United States to take effect, then that portion only shall take effect upon the granting of consent by the United States and effectiveness of the remainder of these amendments or the application thereof shall not be affected."

     The 1989 amendment, effective June 8, 1989, in the third sentence of subsection (a), substituted "nine members" for "eight members" following "composed of ", substituted "two shall be residents" for "one shall be a resident" preceding "of the county of Hawaii" and inserted "one of whom shall be a resident of east Hawaii and the other a resident of west Hawaii;" and substituted "ninth member" for "eighth member" near the end of the sentence.

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

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

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

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

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

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

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

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

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

     Now set aside as Keaukaha Beach Park by Executive Order Numbered 421, and being a portion of the Government land at Waiakea, South Hilo, Hawaii.

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

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

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

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

     3. Two hundred and eighty-two degrees no minutes four hundred and sixty-eight and fifty one-hundredths feet;

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

     5. Two hundred and sixty degrees twenty minutes one hundred and forty feet;

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

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

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

     9. Two hundred and five degrees no minutes sixty feet;

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

     11. Ninety degrees fifty minutes eighty feet;

     12. One hundred and sixty-two degrees no minutes one hundred and seventy feet;

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

     14. Three hundred and thirty-one degrees fifty-eight minutes three hundred and eighty feet along parcel II of Government land to the point of beginning and containing an area of eleven and twenty one-hundredths acres, more or less.

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

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

     1. One hundred and fifty-one degrees fifty-six minutes three hundred and eighty feet along the east boundary of parcel I;

     2. Two hundred and twenty-nine degrees forty-five minutes thirty seconds one hundred and ninety-one and one one-hundredths feet;

     3. One hundred and ninety-eight degrees no minutes two hundred and thirty feet to a one-and-one-half inch pipe set in concrete;

     4. Three hundred and seven degrees thirty-eight minutes five hundred and sixty-two and twenty-one one-hundredths feet to a one-and-one-half inch pipe set in concrete;

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

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

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

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

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

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

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

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

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

     3. One hundred and thirty-one degrees thirteen minutes two hundred and thirty-two and five-tenths feet along a twenty-five foot roadway;

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

     5. One hundred and sixty-eight degrees seventeen minutes two hundred and fifty-seven and eight-tenths feet along Government land (old quarry lot);

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

     7. Thence following the old Auwaiolimu stone wall along L.C. Award Numbered 3145, to Laenui, grant 5147 (lot 8 to C.W. Booth), L.C. Award Numbered 1375, to Kapule, and L.C. Award Numbered 1355, to Kekuanoni, the direct azimuth and distance being two hundred and forty-nine degrees forty-one minutes one thousand three hundred and three and five-tenths feet;

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

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

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

     Beginning at the northeast corner of this lot, at a place call "Puu Ea" on the boundary between the lands of Kewalo and Auwaiolimu, the coordinates of said point of beginning referred to Government survey triangulation station "Punchbowl," being three thousand two hundred and fifty-five and six-tenths feet north and five thousand two hundred and forty-four and seven-tenths feet east, as shown on Government Survey Registered Map Numbered 2692 of the State of Hawaii, and running by true azimuths:

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

     2. Thence down the middle of said stream along the land of Kalawahine, the direct azimuth and distance being forty-nine degrees sixteen minutes one thousand five hundred and twelve and five-tenths feet;

     3. One hundred and forty-one degrees twelve minutes eight hundred and sixty feet along the remainder of the land of Kewalo;

     4. Two hundred and thirty-one degrees twelve minutes five hundred and fifty-two and six-tenths feet along the land of Auwaiolimu to "PUU IOLE";

     5. Thence still along the said land of Auwaiolimu following the top of the ridge to the point of beginning, the direct azimuth and distance being two hundred and thirty-two degrees twenty-six minutes one thousand four hundred and seventy feet and containing an area of thirty acres; excepting and reserving therefrom Tantalus Drive crossing this land;

     (III) Portion of the land of Kalawahine makai of Tantalus Drive consisting of twelve acres, more or less, said parcel described more specifically in tax map key 2-4-34-8, which includes certain parcels adjoining the Ewa portion of Kalawahine Place currently occupied by short-term land dispositions if the persons residing on those parcels meet the qualifications established by the Legislature of the State of Hawaii and elect to have the land under their homes transferred to the department, and certain portions of the Ewa portion of the parcel, but excluding the hillside side portions of the southeast parcel, with metes and bounds designated by the department and approved by the department of land and natural resources; provided that persons now residing on portion of the land described, be given first opportunity to lease the lands on which they now reside, for a term of 99 years, whether or not they be native Hawaiians as defined in the Hawaiian Homes Commission Act of 1920, as amended.

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

     Being a portion of the land of Kewalo-uka conveyed by the Territory of Hawaii to the United States of America by proclamations of the Acting Governor of Hawaii, Henry S. Cooper, dated June 10, 1901, and August 16, 1901, and a portion of the United States Navy Hospital reservation described in Presidential Executive Order Numbered 1181, dated March 25, 1910.

     Beginning at the west corner of this parcel of land, on the Auwaiolimu-Kewalo-uka boundary and on the northeast side of Auwaiolimu Street, the coordinates of said point of beginning referred to Government survey triangulation station "Punchbowl," being one thousand two hundred and thirty and fifty-eight one-hundredths feet north and two thousand six hundred and seventy-five and six one-hundredths feet east as shown on Government Survey Registered Map Numbered 2985 and running by azimuths measured clockwise from true south:

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

     2. Three hundred and twenty-one degrees twelve minutes eight hundred and sixty feet along Hawaiian home land as described in Presidential Executive Order Numbered 5561;

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

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

     5. Eight degrees no minutes one hundred and fifteen feet;

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

     7. Two degrees thirty minutes sixty feet;

     8. Forty-nine degrees forty minutes fifty-two feet;

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

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

     11. Eighty-three degrees thirty-eight minutes seventy-one and sixty-three one-hundredths feet along state land to the northeast side of Auwaiolimu Street;

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

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

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

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

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

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

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

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

     Being land reserved by the State of Hawaii within the Hawaii Experiment Station under the control of the United States Department of Agriculture, as described in proclamations of the Acting Governor of Hawaii, Henry E. Cooper, dated June 10, 1901.

     Beginning at the northwest corner of this parcel of land and on the northeast side of Auwaiolimu Street, the coordinates of said point of beginning referred to Government survey triangulation station "Punchbowl," being eight hundred and ninety-three and sixty-six one-hundredths feet north and two thousand nine hundred and thirty-three and fifty-nine one-hundredths feet east as shown on Government Survey Registered Map Numbered 2985 and running by azimuths measured clockwise from true south:

     1. Two hundred and thirty-three degrees twenty minutes three hundred and forty and thirty-four one-hundredths feet along the Hawaii Experiment Station under the control of the United States Department of Agriculture;

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

     3. Two hundred and ninety degrees six minutes two hundred and thirty-nine and twenty one-hundredths feet along same;

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

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

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

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

     8. One hundred and forty-two degrees thirty minutes seventy-one and fifty-seven one-hundredths feet along same to the point of beginning and containing an area of four and six hundred and forty-six one-thousandths acres.

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

     Beginning at a pipe in concrete at the south corner of this parcel of land, being also the east corner of Hawaiian home land, the coordinates of said point of beginning referred to Government Survey Triangulation Station "Punchbowl," being two thousand twelve and seventy-five one-hundredths feet south and three thousand six hundred forty-seven and eight-seven one-hundredths feet east, and thence running by azimuths measured clockwise from true south:

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

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

     3. Two hundred and ninety-five degrees thirty minutes three hundred and twenty feet along the remainder of government land of Auwaiolimu;

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

     5. Thence along middle of ridge along the land of Kewalo-uka to a point called "Puu Iole" (pipe in concrete monument), the direct azimuth and distance being fifty-six degrees no minutes eight hundred and thirty feet;

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

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

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

     1. Two hundred and forty-eight degrees nineteen minutes forty seconds eight hundred fifty and fifty-four one-hundredths feet along the land of Kewalo-uka;

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

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

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

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

     6. Seventy-three degrees twenty minutes two hundred fifty-five and ninety one-hundredths feet along Makiki Forest Ridge lots;

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

     8. Thence along the south side of Tantalus Drive on a curve to the right with a radius of two hundred and seventy feet, the direct azimuth and distance being two hundred and twenty-one degrees twelve minutes nineteen seconds ninety-eight and thirty-six one-hundredths feet;

     9. Two hundred and thirty-one degrees forty-two minutes one hundred ninety-three and thirty-five one-hundredths feet along the south side of Tantalus Drive;

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

     11. Two hundred and forty-two degrees fifteen minutes sixty-two and thirty-two one-hundredths feet along the land of Kewalo-uka;

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

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

     Wailuku, Maui: That parcel of government land, situated in the District of Wailuku, Island and County of Maui, comprising twelve and four hundred and fifty-five one-thousandths acres of the ILI OF KOU and being a portion of the land covered by General Lease Numbered 2286 to Wailuku Sugar Company, Limited, notwithstanding the fact that said parcel is cultivated sugar cane land, subject, however, to the terms of said lease.

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

     Being a portion of land described in general lease numbered 2724 to the Lihue Plantation Company situate in the district of Anahola, Kauai, State of Hawaii, beginning at the northwest corner of this parcel of land, the coordinates of which referred to government triangulation station south base are three thousand and forty-nine and sixty-two one-hundredths feet south, one thousand nine hundred and thirty-two and twenty-five one-hundredths feet west, and running thence by azimuths measured clockwise from true south two hundred and eighty-four degrees thirty minutes two hundred and fifty feet, thence on the arc of circular curve to the left, with a radius of eight hundred and ninety feet and a central angle of thirty-five degrees fifteen minutes, the direct azimuth and distance being two hundred and sixty-six degrees fifty-two minutes thirty seconds five hundred and thirty-eight and ninety-six one-hundredths feet, thence two hundred and forty-nine degrees fifteen minutes one thousand eight hundred and nine and twenty-five one-hundredths feet, thence two hundred and twenty-four degrees fifteen minutes three thousand fifty-six feet, thence one hundred and thirty-four degrees fifteen minutes two hundred and seven feet, to the seashore at Anahola Bay, thence along the seashore around Kahala Point, the direct azimuth and distance being two hundred and thirty-seven degrees six minutes seven seconds one thousand and sixty and fourteen one-hundredths feet, thence along the seashore, the direct azimuth and distance being three hundred and thirty-two degrees no minutes one thousand eight hundred and twenty-seven feet, thence along the seashore, the direct azimuth and distance being three hundred and fifty-five degrees no minutes one thousand eight hundred and twenty-seven feet, thence eighty-seven degrees twenty minutes seven hundred and forty feet, thence fifty-nine degrees no minutes two thousand seven hundred and fifteen feet, thence sixty-nine degrees fifteen minutes one thousand eight hundred and eighty-seven and thirty-six one-hundredths feet, thence on the arc of a circular curve to the right with a radius of three thousand and twelve feet, and a central angle of thirty-five degrees fifteen minutes the direct azimuth and distance being eighty-six degrees fifty-two minutes thirty seconds one thousand eight hundred and twenty-three and ninety-eight one-hundredths feet, thence one hundred and four degrees thirty minutes two hundred and fifty feet, thence one hundred and ninety-four degrees thirty minutes one thousand and thirty-one feet, thence on the arc of a circular curve to the left with a radius of six hundred and seven and ninety-five one-hundredths feet and a central angle of fifty-three degrees three minutes thirty seconds the direct azimuth and distance being seventy-seven degree fifty-eight minutes fifteen seconds five hundred and forty-three and nine one-hundredths feet to the government road, thence two hundred and thirty-one degrees twenty-six minutes thirty seconds one hundred and thirteen and sixty-one one-hundredths feet along the government road, thence along the government road on the arc of a circular curve to the left with a radius of four hundred and seventy-seven feet and a central angle of forty-four degrees twenty-six minutes thirty seconds, the direct azimuth and distance being two hundred and nine degrees thirteen minutes fifteen seconds three hundred and sixty and seventy-eight one-hundredths feet, thence one hundred and eighty-seven degrees no minutes one hundred and sixty-nine and fifty-four one-hundredths feet along the government road, thence on the arc of a circular curve to the left with a radius of three hundred and fifty-one and eight one-hundredths feet and a central angle of eighty-two degrees thirty minutes the direct azimuth and distance being three hundred and twenty-five degrees forty-five minutes four hundred and sixty-two and ninety-seven one-hundredths feet, thence one hundred and ninety-four degrees thirty minutes five hundred and seventy-nine feet, thence one hundred and four degrees thirty minutes three hundred feet, thence one hundred and ninety-four degrees thirty minutes two hundred feet, thence two hundred eighty-four degrees thirty minutes three hundred feet, thence one hundred and ninety-four degrees thirty minutes two hundred and fifty-two feet to the point of beginning containing an area of four hundred and one and four hundred and twenty-three one-thousandths acres more or less.

     [Am May 16, 1934, c 290, § 1, 48 Stat 777; Aug. 29, 1935, c 810, § 1, 49 Stat 966; Jul. 10, 1937, c 482, 50 Stat 497; Nov. 26, 1941, c 544, § 1, 55 Stat 782; May 31, 1944, c 216, § 2, 58 Stat 260; Jun. 3, 1948, cc 384, 397, 62 Stat 295, 303; Jul. 9, 1952, c 614, §§ 1, 2, 66 Stat 511; am L 1963, c 207, §§ 2, 5; am L 1990, c 150, § 7]

     Editor's Note. - The Act of May 31, 1944, c. 216, § 2, 58 Stat. 260, repealed so much of the above section as designates the lands hereinafter described as "available lands," and restored such lands to their previous status under the control of the Territory of Hawaii. The lands so restored on the island of Hawaii are:

     Those portions of Keaukaha tract 1, being additions to the Hilo airplane landing field, comprising several parcels of land as follows:

     Parcel 1. Land situated at Keaukaha, tract 1, Waiakea, South Hilo, island of Hawaii, State of Hawaii, being portions of lots 96, 97, 182, 183, 184, 185, Desha Avenue, and twenty-five foot alley, of the Keaukaha residence lots, as shown on government survey registered maps 2723 and 3017, on file in the department of accounting and general services at Honolulu.

     Beginning at the south corner of this piece of land and on the west boundary of the Hawaiian home land, the true azimuth and distance from the northwest corner of the Hilo airport addition, as shown on government survey registered maps 2723 and 3017 on file in the department of accounting and general services at Honolulu, and on the south side of Kamehameha Avenue, being one hundred and eighty degrees no minutes four hundred and three and thirty-one one-hundredths feet, and the coordinates of said point of beginning referred to Government Survey Triangulation Station "Halai" being two thousand five hundred and twenty and thirty-one one-hundredths feet north and fifteen thousand five hundred and fifty-three one-hundredths feet east, thence running by azimuths measured clockwise from true south:

     1. One hundred and eighty degrees no minutes six hundred and fifteen and ninety-five one-hundredths feet along Government land and tract A of grant deeded by Territory of Hawaii to Hilo Railroad Company;

     2. Three hundred and ten degrees forty-two minutes four hundred and one and sixty-six one-hundredths feet along the remainders of Desha Avenue, lots 96, 97, twenty-five-foot alley, and lot 182 of the Keaukaha residence lots; and

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

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

     Beginning at the northwest corner of this piece of land; being also the southwest corner of Kamehameha and Kauhane Avenues, the coordinates of said point of beginning referred to Government Survey Triangulation Station "Halai" being two thousand one hundred and seventeen feet north and sixteen thousand eight hundred and eighty feet east, thence running by azimuths measured clockwise from true south:

     1. Two hundred and seventy degrees no minutes two thousand and seventeen and eighty-five one-hundredths feet along the south side of Kamehameha Avenue;

     2. Three hundred and sixty degrees no minutes four hundred and fifty feet along lots 448 and 487 of the Keaukaha residence lots;

     3. Three hundred and sixty degrees no minutes fifty feet across Kamaka Avenue;

     4. Three hundred and sixty degrees no minutes two hundred and twenty-five feet along lot 545 of the Keaukaha residence lots;

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

     6. Ninety degrees no minutes fifty feet across Pua Avenue;

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

     8. Ninety degrees no minutes fifty feet across Spencer Avenue;

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

     10. Ninety degrees no minutes fifty feet across Kauhane Avenue; and

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

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

     Beginning at the northeast corner of this piece of land, being also the northeast corner of lot 446 and the southwest corner of Kamehameha and Baker Avenues, the true azimuth and distance from the northwest corner of Hilo airport addition (of twenty and fifty-four one-hundredths acres and on the south side of Kamehameha Highway), as shown on Government Survey Registered Maps 2723 and 3017, being two hundred and seventy degrees no minutes and three thousand six hundred and eighty-eight and seventy one-hundredths feet, and the coordinates of said point of beginning referred to Government Survey Triangulation Station "Halai" being two thousand one hundred and seventeen feet north and nineteen thousand one hundred and ninety-two and twenty-three one-hundredths feet east, thence running by azimuths measured clockwise from true south:

     1. Three hundred and sixty degrees no minutes four hundred and fifty feet along the west side of Baker Avenue;

     2. Three hundred and sixty degrees no minutes fifty feet across Kamaka Avenue;

     3. Three hundred and sixty degrees no minutes four hundred and fifty feet along the west side of Baker Avenue;

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

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

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

     7. Two hundred and seventy degrees no minutes two hundred and ninety-four and thirty-six one-hundredths feet along lots 548, 547, and 546 of the Keaukaha residence lots;

     8. One hundred and eighty degrees no minutes two hundred and twenty-five feet along lot 546 of the Keaukaha residence lots;

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

     10. One hundred and eighty degrees no minutes four hundred and fifty feet along lots 486 and 449 of the Keaukaha lots to the south side of Kamehameha Avenue; and

     11. Two hundred and seventy degrees no minutes two hundred and ninety-four and thirty-eight one-hundredths feet along the south side of Kamehameha Avenue to the point of beginning and containing an area of six and eighty one-hundredths acres.

     Parcel 4. As returned to the Commissioner of Public Lands of the Territory of Hawaii by resolution numbered 78 of the Hawaiian Homes Commission, dated May 13, 1942. Land situated at Keaukaha, tract 1, Waiakea, South Hilo, Island of Hawaii, State of Hawaii, being the whole of lots 93, 94, 95, 98, 99, 100, 101, and 102 and portions of lots 92, 96, 97, and 103 and a portion of Desha Avenue of the Keaukaha residence lots, as shown on Government Survey Registered Maps 2723 and 3017, more particularly described as follows:

     Beginning at the northwest corner of this piece of land, being also the northwest corner of lot 94 and on the southeast side of twenty-five-foot road, the true azimuth and distance from the northwest corner of Hilo airport addition (of twenty and fifty-four one-hundredths acres and on the south side of Kamehameha Highway), as shown on Government Survey Registered Maps 2723 and 3017, being one hundred and eighty degrees no minutes one thousand seven hundred and fifty-one and eighty-seven one-hundredths feet, and the coordinates of said point of beginning referred to Government Survey Triangulation Station "Halai" being three thousand eight hundred and sixty-eight and eighty-seven one-hundredths feet north and fifteen thousand five hundred and three and fifty-three one-hundredths feet east, thence running by azimuths measured clockwise from true south:

     1. Two hundred and forty-three degrees fifty minutes one hundred and seventy-seven and ninety-three one-hundredths feet along the southeast side of twenty-five-foot road;

     2. Three hundred and thirty-three degrees fifty minutes two hundred and thirty-five and sixty one-hundredths feet along lot 92 of the Keaukaha residence lots;

     3. Two hundred and forty-three degrees fifty minutes one hundred feet along the remainder of lot 92 of the Keaukaha residence lots;

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

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

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

     7. Three hundred and thirty-three degrees fifty minutes two hundred and thirty-five and sixty one-hundredths feet along lot 103 of the Keaukaha residence lots;

     8. Two hundred and forty-three degrees fifty minutes one hundred feet along the remainder of lot 103 of the Keaukaha residence lots;

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

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

     11. One hundred and thirty degrees forty-two minutes two hundred and eighty-six and seventy-three one-hundredths feet along the remainders of lots 97 and 96 and Desha Avenue of the Keaukaha residence lots; and

     12. One hundred and eighty degrees no minutes seven hundred and thirty-two and sixty-one one-hundredths feet along Government land and tract A of grant deed by the Territory of Hawaii to Hilo Railroad Company to the point of beginning and containing an area of ten and eight hundred and forty-nine one-thousandths acres.

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

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

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

     "Beginning at a spike at the northwest corner of this tract of land and on the southeast corner of the intersection of Nene and Akepa Streets, the coordinates of said point of beginning referred to Government Survey Triangulation Station 'Halai' being five thousand two hundred and eight and twenty-one one-hundredths feet north and twenty-four thousand eight hundred and eighteen and six one-hundredths feet east, and running by azimuths measured clockwise from true south:

     "1. Two hundred and ninety degrees eleven minutes five hundred and sixty-one and eighty-two one-hundredths feet along the south side of Nene Street;

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

     "3. Two hundred and forty-seven degrees three minutes five hundred and ninety-six and sixty-two one-hundredths feet along same;

     "4. "Three hundred and sixty degrees no minutes one thousand two hundred and thirty-seven and eighty-five one-hundredths feet;

      "5. Ninety degrees no minutes two thousand one hundred and fifty-three and sixty-nine one-hundredths feet;

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

      "Section 2. Notwithstanding the foregoing provisions of this Act, if, at any time, in the opinion of the Commissioner of Public Lands, use of the above described lands has been discontinued by the Department of Commerce, upon the making of such a determination by the Commissioner of Public Lands such lands shall become available lands within the meaning of Section 203 of title II of the Hawaiian Homes Commission Act, 1920, as amended."

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

     Those portions of Hoolehua, apana 2, and Palaau, apana 2, comprising the Molokai airplane landing field as set aside for public purposes by Executive Order Numbered 307 of the Governor of the Territory of Hawaii, dated December 15, 1927, consisting of two hundred four and nine-tenths acres, more or less, and particularly described as follows:

     Beginning at a point on the southeast corner of the said land, from which the azimuth (measured clockwise from true south) and distance to United States Coast and Geodetic Survey Triangulation Station "Middle Hill" (Kualapuu) is two hundred and seventy-two degrees twenty-three minutes thirty-nine seconds, twelve thousand seven hundred twenty and nine-tenths feet, thence from said point of beginning by metes and bounds, eighty-five degrees ten minutes thirty seconds, three thousand four hundred and twenty-seven feet; one hundred and eighty degrees fifty-six minutes thirty seconds, two thousand six hundred thirty and two-tenths feet; two hundred and seventy-nine degrees fifty-five minutes thirty seconds, four thousand nine hundred seven and three-tenths feet; three hundred and forty-six degrees twenty minutes, three hundred forty-two and three-tenths feet near west edge of Kakainapahao Gulch; three degrees twenty-six minutes, four hundred twenty-seven and one-tenth feet; eighty-three degrees twenty-four minutes, one thousand four hundred sixty-eight and two-tenths feet; five degrees fifty-eight minutes, five hundred seventy-one and three-tenths feet to the point of beginning.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

§ 204. Control by department of "available lands," return to board of land and natural resources, when; other lands, use of.

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

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

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

     In the management of any retained available lands not required for leasing under section 207(a), the department may dispose of those lands to the public, including native Hawaiians, on the same terms, conditions, restrictions, and uses applicable to the disposition of public lands in chapter 171, Hawaii Revised Statutes; provided that the department may not sell or dispose of such lands in fee simple except as authorized under section 205 of this Act; provided further that the department is expressly authorized to negotiate, prior to negotiations with the general public, the disposition of a lease of Hawaiian home lands to a native Hawaiian, or organization or association owned or controlled by native Hawaiians, for commercial, industrial, or other business purposes, in accordance with the procedure set forth in section 171-59, Hawaii Revised Statutes, subject to the notice requirement of section 171-16(c), Hawaii Revised Statutes, and the lease rental limitation imposed by section 171-17(b), Hawaii Revised Statutes.

     (3) The department, with the approval of the Secretary of the Interior, in order to consolidate its holdings or to better effectuate the purposes of this Act, may exchange the title to available lands for land, privately or publicly owned, of an equal value. All lands so acquired by the department shall assume the status of available lands as though the land were originally designated as available lands under section 203 of this Act, and all lands so conveyed by the department shall assume the status of the land for which it was exchanged. The limitations imposed by section 73(1) of the Hawaiian Organic Act and the land laws of Hawaii as to the area and value of land that may be conveyed by way of exchange shall not apply to exchanges made pursuant hereto. No such exchange of land publicly owned by the State shall be made without the approval of two-thirds of the members of the board of land and natural resources. For the purposes of this paragraph, lands "publicly owned" means land owned by a county or the State or the United States.

     (b) Unless expressly provided elsewhere in this Act, lands or an interest therein acquired by the department pursuant to section 213(b)(1), 221(c), or 225(b), or any other section of this Act authorizing the department to acquire lands or an interest therein, may be managed and disposed of in the same manner and for the same purposes as Hawaiian home lands.

      [Am Mar. 27, 1928, c 142, § 1, 45 Stat 246; Jul. 10, 1937, c 482, 50 Stat 503; Feb. 20, 1954, c 10, § 1, 68 Stat 16; Jun. 18, 1954, c 319, § 1, 68 Stat 262; am L 1963, c 207, §§ 2, 5(b); am L 1965, c 271, § 1; am L 1976, c 24, § 1; am Const Con 1978 and election Nov. 7, 1978; am L. 1985, c 60, § 1; am L 1990, c 14, § 1]

     Editor's Note. - Section 2 of 1990 Haw. Sess. Laws, Act 14, provides: "The provisions of the amendments made by this Act to the Hawaiian Homes Commission Act, 1920, as amended, are declared to be severable and, if any section, sentence, clause, or phrase, or the application thereof to any person or circumstances is held ineffective because there is a requirement of having the consent of the United States to take effect, then that portion only shall take effect upon the granting of consent by the United States and the effectiveness of the remainder of these amendments or the application thereof shall not be affected."

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

     "SECTION 7. The department of the attorney general, the department of Hawaiian home lands, and the office of state planning are authorized to pursue Hawaiian home lands trust claims against the federal government. In these endeavors, the department of the attorney general, the department of Hawaiian home lands, and the office of state planning shall consult with the independent representative authorized in section 5 of this Act. .

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

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

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

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

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

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

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

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

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

     Effect of § 171-95(a)(2). - When the disposition of Hawaiian home lands under the authority of section 204(2) is by way of a lease to a government agency, the controlling statute is § 171-95(a)(2). Ahia v. DOT, 69 Haw. 538, 751 P.2d 81 (1988).

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

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

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

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

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

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

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

     The department and commission breached their fiduciary duty to eligible native Hawaiian beneficiary and violated the trust obligations imposed by the Hawaii Constitution by giving undue weight to the interests of the state, the county of Hawaii, and the citizens or taxpayers of Hawaii in general in determining to withhold certain acreage from a lease issued to the beneficiary. Ahuna v. Department of Hawaiian Home Lands, 64 Haw. 327, 640 P.2d 1161 (1982).

     Threatened and endangered plants are protected on Hawaiian home lands under the provisions of chapter 195D, as well as under the provisions of the federal Endangered Species Act of 1973, ("ESA"), to the same extent that such plants are protected elsewhere in Hawaii., Op. Att'y Gen. No. 95-05 (1995).

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

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

     Zoning. - Where Hawaiian home lands are needed or required for the purposes of the Hawaiian Homes Commission Act, any zoning ordinance purporting to change the land use designation by the department of Hawaiian home lands or to impose restrictions on the use of such Hawaiian home lands would be outside the scope of any power granted to counties. Op. Att'y Gen. No. 72-21 (1972).

     Where the commission has determined that certain lands are not required for purposes of the Hawaiian Homes Commission Act, such lands could be subjected to county zoning regulations. Op. Att'y Gen. No. 72-21 (1972).

     The Hawaiian homes commission's action of requesting and initiating rezoning by a county was tantamount to a finding that the Hawaiian home lands in question were no longer needed or required for the purposes of the Hawaiian Homes Commission Act, and because of that finding the county was authorized to rezone the lands from residential to light industrial use and could also continue to exercise zoning powers over such lands, but should the commission subsequently determine that those lands were again needed or required for the purposes of the act, the authority of the county to zone the lands would terminate. Op. Att'y Gen. No. 72-21 (1972).

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

[§ 204.5]. Additional powers.

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

     (1) With the approval of the governor, undertake and carry out the development of any Hawaiian home lands available for lease under and pursuant to section 207 of this Act by assembling these lands in residential developments and providing for the construction, reconstruction, improvement, alteration, or repair of public facilities therein, including, without limitation, streets, storm drainage systems, pedestrian ways, water facilities and systems, sidewalks, street lighting, sanitary sewerage facilities and systems, utility and service corridors, and utility lines, where applicable, sufficient to adequately service developable improvements therein, sites for schools, parks, off-street parking facilities, and other community facilities;

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

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

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

     All provisions of part III of chapter 39, Hawaii Revised Statutes, shall apply to the department and all revenue bonds issued by the department shall be issued pursuant to the provisions of that part, except these revenue bonds shall be issued in the name of the department, and not in the name of the State.

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

     [L 1989, c 283, § 2]

     Editor's Note. - Section 3 of 1989 Haw. Sess. Laws, Act 283, provides: "The provisions of the amendments made by this Act to the Hawaiian Homes Commission Act, 1920, as amended, are declared to be severable and if any section, clause, or phrase, or the application thereof to any person or circumstances is held to be invalid or ineffective because there is a requirement of having the consent of the United States to take effect, then that portion only shall take effect upon the granting of consent by the United States and effectiveness of the remainder of these amendments or the application thereof shall not be affected."

     Effective date. - This section became effective June 9, 1989.

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

     Available lands shall be sold or leased only (1) in the manner and for the purposes set out in this title, or (2) as may be necessary to complete any valid agreement of sale or lease in effect at the time of the passage of this Act; except that such limitations shall not apply to the unselected portions of lands from which the department has made a selection and given notice thereof, or failed so to select and give notice within the time limit, as provided in paragraph (3) of section 204 of this title.

     [Am K 1963, c 207, § 2]

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

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

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

     [Am L 1963, c 207, § 5(a), (b)]

     Editor's Note. - The Act of July 10, 1937, c. 484, 50 Stat. 508, provides in part: "That the legislature of the Territory of Hawaii may create a public corporate authority to engage in slum clearance, or housing undertakings, or both, within such Territory. . . . The legislature . . . may, without regard to any federal acts restricting the disposition of public lands of the Territory, authorize the commissioner of public lands, the Hawaiian homes commissioner, and any other officers of the Territory having power to manage and dispose of its public lands, to grant, convey, or lease to such authority parts of the public domain, and may provide that any of the public domain or other property acquired by such authority may be mortgaged by it as security for its bonds. . . ."

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

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

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

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

§ 207. Leases to Hawaiians, licenses.

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

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

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

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

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

     (2) The department is also authorized to grant licenses to the United States for reservations, roads, and other rights-of-way, water storage and distribution facilities, and practice target ranges.

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

     [Am Feb. 3, 1923, c 56, § 1, 42 Stat 1222; May 16, 1934, c 290, § 2, 48 Stat 779; Jul. 10, 1937, c 482, 50 Stat 504; May 31, 1944, c 216, §§ 3, 4, 58 Stat 264; Jun. 14, 1948, c 464, §§ 1, 2, 62 Stat 390; Jun. 18, 1954, c 321, § 1, 68 Stat 263; Aug. 23, 1958, Pub L 85-733, 72 Stat 822; am L 1963, c 207, § 2; am L 1981, c 90, § 1; am L 1983, c 125, § 2; am L 1984, c 27, § 1 and c 37, § 2; am L 1985, c 69, § 1 and c 159, § 2]

     Editor's Note. - In addition to the provisions herein made for leases to native Hawaiians, the Act of June 20, 1938, c. 530, § 3, 52 Stat. 781, after providing for the Kalapana extension to the Hawaii National Park, authorized the Secretary of the Interior to lease home sites herein to native Hawaiians under certain circumstances.

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

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

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

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

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

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

     Subdivision and sublease. - Under this section and § 208 of the Hawaiian Home Commission Act, lessee could not subdivide her homestead tract on Molokai and sublease a portion thereof to her daughter, and the commission was without authority to approve such a plan. Op. Att'y Gen. No. 61-65 (1961).

§ 208. Conditions of leases.

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

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

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

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

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

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

     (6) Notwithstanding the provisions of paragraph (5), the lessee, with the consent and approval of the commission, may mortgage or pledge the lessee's interest in the tract or improvements thereon to a recognized lending institution authorized to do business as a lending institution in either the State or elsewhere in the United States; provided the loan secured by a mortgage on the lessee's leasehold interest is insured or guaranteed by the Federal Housing Administration, Veterans Administration, or any other federal agency and their respective successors and assigns, which are authorized to insure or guarantee such loans. The mortgagee's interest in any such mortgage shall be freely assignable. Such mortgages, to be effective, must be consented to and approved by the commission and recorded with the department.

     Further, notwithstanding the authorized purposes of loan limitations imposed under section 214 of this Act and the authorized loan amount limitations imposed under section 215 of this Act, loans made by lending institutions as provided in this paragraph, insured or guaranteed by the Federal Housing Administration, Veterans Administration, or any other federal agency and their respective successors and assigns, may be for such purposes and in such amounts, not to exceed the maximum insurable limits, together with such assistance payments and other fees, as established under section 421 of the Housing and Urban Rural Recovery Act of 1983 which amended Title II of the National Housing Act of 1934 by adding section 247, and its implementing regulations, to permit the Secretary of Housing and Urban Development to insure loans secured by a mortgage executed by the homestead lessee covering a homestead lease issued under section 207(a) of this Act and upon which there is located a one to four family single family residence.

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

     (8) The lessee shall perform such other conditions, not in conflict with any provision of this Act, as the department may stipulate in the lease; provided that an original lessee shall be exempt from all taxes for the first seven years after commencement of the term of the lease.

      [Am Jul. 10, 1937, c 482, 50 Stat 504; Nov. 26, 1941, c 544, § 2, 55 Stat 783; Aug. 21, 1958, Pub L 85-710, 72 Stat 706; am L 1963, c 207, § 2; am L 1967, c 146, §§ 1, 2; am L 1973, c 66, § 1; am L 1974, c 175, § 1; am L 1978, c 229, § 5; am L 1981, c 90, § 2; am L 1985, c 60, § 2 and c 284, § 1; am L 1990, c 305, § 1]

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

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

     Section 2 of 1990 Haw. Sess. Laws, Act 305, provides: "The provisions of the amendments made by this Act to the Hawaiian Homes Commission Act, 1920, as amended, are declared to be severable and, if any section, sentence, clause, or phrase or the application thereof to any person or circumstances is held ineffective because there is a requirement of having the consent of the United States to take effect, then that portion only shall take effect upon the granting of consent by the United States and the effectiveness of the remainder of these amendments or the application thereof shall not be affected."

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

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

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

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

     Subdivision and sublease. - Under this section and § 207 of the Hawaiian Home Commission Act, lessee could not subdivide her homestead tract on Molokai and sublease a portion thereof to her daughter, and the commission was without authority to approve such a plan. Op. Att'y Gen. No. 61-65 (1961).

§ 209. Successors to lessees.

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

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

     (1) Husband or wife; or

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

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

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

     In the case of the death of a lessee leaving no designated successor or successors, husband, wife, children, or relative qualified to be a lessee of Hawaiian home lands, the land subject to the lease shall resume its status as unleased Hawaiian home lands and the department is authorized to lease the land to a native Hawaiian as provided in this Act.

     Upon the death of a lessee who has not designated a successor and who leaves a spouse not qualified to succeed to the lease or children not qualified to succeed to the lease, or upon the death of a lessee leaving no relative qualified to be a lessee of Hawaiian home lands, or the cancellation of a lease by the department, or the surrender of a lease by the lessee, the department shall appraise the value of all the improvements and growing crops or improvements and aquacultural stock, as the case may be, and shall pay to the nonqualified spouse or the nonqualified children as the lessee shall have designated prior to the lessee's death, or to the legal representative of the deceased lessee, or to the previous lessee, as the case may be, the value thereof, less any indebtedness to the department, or for taxes, or for any other indebtedness the payment of which has been assured by the department, owed by the deceased lessee or the previous lessee. These payments shall be made out of the Hawaiian home loan fund and shall be considered an advance therefrom and shall be repaid by the successor or successors to the tract involved. If available cash in the Hawaiian home loan fund is insufficient to make these payments, payments may be advanced from the Hawaiian home general loan fund and shall be repaid by the successor or successors to the tract involved; provided that any repayment for advances made from the Hawaiian home general loan fund shall be at the interest rate established by the department for loans made from the Hawaiian home general loan fund.

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

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

     (1) Husband or wife; or

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

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

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

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

     In the case of the death of a lessee leaving no designated successor or successors, husband, wife, children, grandchildren, or relative qualified to be a lessee of Hawaiian home lands, the land subject to the lease shall resume its status as unleased Hawaiian home lands and the department is authorized to lease the land to a native Hawaiian as provided in this Act.

     Upon the death of a lessee who has not designated a successor and who leaves a spouse not qualified to succeed to the lease or children not qualified to succeed to the lease, or upon the death of a lessee leaving no relative qualified to be a lessee of Hawaiian home lands, or the cancellation of a lease by the department, or the surrender of a lease by the lessee, the department shall appraise the value of all the improvements and growing crops or improvements and aquacultural stock, as the case may be, and shall pay to the nonqualified spouse or the nonqualified children as the lessee shall have designated prior to the lessee's death, or to the legal representative of the deceased lessee, or to the previous lessee, as the case may be, the value thereof, less any indebtedness to the department, or for taxes, or for any other indebtedness the payment of which has been assured by the department, owed by the deceased lessee or the previous lessee. These payments shall be made out of the Hawaiian home loan fund and shall be considered an advance therefrom and shall be repaid by the successor or successors to the tract involved. If available cash in the Hawaiian home loan fund is insufficient to make these payments, payments may be advanced from the Hawaiian home general loan fund and shall be repaid by the successor or successors to the tract involved; provided that any repayment for advances made from the Hawaiian home general loan fund shall be at the interest rate established by the department for loans made from the Hawaiian home general loan fund.

     (b) The appraisal of improvements and growing crops, or stock, if any, shall be made by any one of the following methods:

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

     (2) By one disinterested appraiser mutually agreeable to both the department and the previous lessee or the deceased lessee's legal representative, with the cost of appraisal borne equally by the two parties; or

     (3) By not more than three disinterested appraisers of which the first shall be contracted for and paid by the department. If the previous lessee or the deceased lessee's legal representative does not agree with the appraised value, the previous lessee or the deceased lessee's legal representative shall contract with and pay for the services of a second appraiser whose appraisal report shall be submitted to the department not later than ninety days from the date of the first appraisal report; provided that the first appraisal shall be used if the second appraiser is not hired within thirty days from the date the department transmits the first appraisal report to the previous lessee or the deceased lessee's representative. If the appraisal values are different and a compromise value between the two appraisals is not reached, a third appraisal shall be made by an appraiser appointed by the first two appraisers not later than ninety days from the date of the second appraisal report and the third appraiser shall determine the final value. The cost of the third appraisal shall be borne equally by the department and the previous lessee or the deceased lessee's legal representative.

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

     (c) If a previous lessee has abandoned the tract or tracts or cannot be located after at least two attempts to contact the previous lessee by certified mail, the department by public notice published at least once in each of four successive weeks in a newspaper of general circulation in the State shall give notice to the previous lessee that the lease will be canceled in accordance with sections 210 and 216 of this title and the department will appraise the value of the improvements and growing crops and stock, if any, if the previous lessee does not present himself or herself within one hundred and twenty days from the first day of publication of the notice. Following cancellation of the lease and appraisal of the improvements and growing crops and stock, if any, the department shall make the payout as provided in subsection (a).

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

     (e) If any successor or successors to a tract is a minor or minors, the department may appoint a guardian therefor, subject to the approval of the court of proper jurisdiction. The guardian shall be authorized to represent the successor or successors in all matters pertaining to the leasehold; provided that the guardian, in so representing the successor or successors, shall comply with this title and the stipulations and provisions contained in the lease, except that the guardian need not be a native Hawaiian as defined in section 201 of this title.

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

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

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

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

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

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

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

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

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

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

     The 1992 amendment, effective May 27, 1992, at the end of the third sentence of the first paragraph of subsection (a) of § 209 substituted "under section 3 of the Act of July 9, 1952 (66 Stat. 511, 513)." for "under section of the Act of ( Stat. , )."

     The 1993 amendment, effective May 21, 1993, in subsection (a), added "father and mother," following "native Hawaiian," in the second sentence of the first paragraph; added paragraph (3); in the first sentence of the third paragraph, deleted "or" following "husband, wife,"; added ", or relative" preceding "qualified to be a lessee"; and made minor changes in punctuation and style.

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

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

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

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

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

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

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

     Stepchildren are not included in the meaning of the word "children" as used in paragraph (1), since neither the Hawaiian Homes Commission Act nor the Hawaii law of descent and distribution specifically provides for stepchildren. Op. Att'y Gen. No. 73-18 (1973).

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

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

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

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

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

§ 210. [Cancellation of leases.]

     Whenever the department has reason to believe that any condition enumerated in section 208, or any provision of section 209, of this title has been violated, the department shall give due notice and afford opportunity for a hearing to the lessee of the tract in respect to which the alleged violation relates or to the successor of the lessee's interest therein, as the case demands. If upon such hearing the department finds that the lessee or his successor has violated any condition in respect to the leasing of such tract, the department may declare his interest in the tract and all improvements thereon to be forfeited and the lease in respect thereto canceled, and shall thereupon order the tract to be vacated within a reasonable time. The right to the use and occupancy of the Hawaiian home lands contained in such tract shall thereupon revest in the department and the department may take possession of the tract and the improvements thereon.

     [Am L 1963, c 207, § 2]

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

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

§ 210.5. REPEALED. L 1987, c 36, § 2.

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

§ 211. [Community pastures.]

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

     [Am L 1963, c 207, § 2]

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

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

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

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

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

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

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

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

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

§ 213. Funds and accounts.

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

     (b) Hawaiian home loan fund. The moneys in this fund shall be available for the purposes enumerated in section 214 and for payments provided in section 209 and shall not be expended for any other purpose except as provided in subsection (e). Any interest or other earnings arising out of investments from this fund shall be credited to and deposited into the Hawaiian home operating fund.

     (c) Hawaiian home general loan fund. Moneys appropriated by the legislature for the construction of homes but not otherwise set aside for a particular fund, for construction of replacement homes, for home repairs or additions, or for the development and operation of a farm, ranch, or aquaculture operation; moneys transferred from other funds; and installments of principal paid by the lessees upon loans made to them from this fund, or as payments representing reimbursements on account of advances, but not including interest on such loans or advances, shall be deposited into this fund. The moneys in the fund shall be used for purposes enumerated in section 214 and for payments provided in section 209; provided that, in addition to the conditions enumerated in section 215, farm loans shall be subject to the following conditions:

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

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

     (3) Subsidies and grants or cost-sharing funds entitled and received by the lessee for soil and water conservation purposes shall be assigned to the department for the repayment of the outstanding farm indebtedness; and

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

     The department may create an account within this fund for moneys borrowed from government agencies or private lending institutions to be used for any of the purposes enumerated in section 214. Installments of principal and that part of the interest equal to the interest charged to the department by the lender paid by the lessees on the loans made to them from this account shall be deposited into the same account. Any additional interest or other earnings arising out of investments from this account shall be credited to and deposited into the Hawaiian home receipts fund.

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

     (e) Hawaiian home operating fund. The interest transferred from the Hawaiian home loan fund, all moneys received by the department from any other source, and moneys transferred from the Hawaiian home receipts fund, shall be deposited into the Hawaiian home operating fund. The moneys in this fund, without the prior written approval of the governor, shall be available:

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

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

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

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

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

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

     In addition, moneys of this fund shall be made available with the prior written approval of the governor for offsite improvements and development necessary to serve present and future occupants of Hawaiian home lands; for improvements, additions, and repairs to all assets owned or leased by the department excluding structures or improvements that the department is obligated to acquire under section 209; for engineering, architectural, and planning services to maintain and develop properties; for such consultant services as may be contracted for under this Act; for purchase or lease of necessary equipment; for acquisition or lease of real property and interest therein; and for improvements constructed for the benefit of beneficiaries of this Act and not otherwise permitted in the various loan funds or the administration account.

     (f) Hawaiian home administration account. The entire receipts derived from any leasing or other disposition of the available lands pursuant to section 204(2) and transfers from the Hawaiian home receipts fund shall be deposited into this account. Any interest or other earnings arising out of investments from this fund shall be credited to and deposited into this fund. The moneys in this account shall be expended by the department for salaries and other administration expenses of the department in conformity with general law applicable to all departments of the State, and no sums shall be expended for structures and other permanent improvements. This account shall be subject to the following conditions and requirements:

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

(2) The department's budget as approved by the governor shall be included in the governor's budget report and shall be transmitted to the legislature for its approval;

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

(g) Hawaiian home receipts fund. All interest moneys from loans or investments received by the department from any fund except as provided for in each respective fund, shall be deposited into this fund. At the end of each quarter, all moneys in this fund may be transferred to the Hawaiian home operating fund, the Hawaiian home administration account, the Hawaiian home trust fund, and any loan fund in accordance with rules adopted by the department.

(h) Hawaiian home trust fund. Except for gifts, bequests, and other moneys given for designated purposes, moneys deposited into this fund shall be available for transfers into any other fund or account authorized by the Act or for any public purpose deemed by the commission to further the purposes of the Act. Public purpose, as used herein, includes the formation of an account within the Hawaiian home trust fund as a reserve for loans insured or guaranteed by the Federal Housing Administration, Department of Veterans Affairs, or any other federal agency and their respective successors and assigns, which are authorized to insure or guarantee loans. Notwithstanding any other law to the contrary, the department is expressly authorized to deposit the reserve for loans in any duly organized bank in the State or elsewhere in the United States with automatic fund transfer capabilities and at such reserve amounts as shall be reasonably required by the federal agencies as a condition for participation in their respective insurance or guarantee programs.

(i) Native Hawaiian rehabilitation fund. Pursuant to Article XII, Section 1, of the State Constitution, thirty per cent of the state receipts, derived from lands previously cultivated as sugarcane lands under any other provision of law and from water licenses, shall be deposited into this fund. The department shall use this money solely for the rehabilitation of native Hawaiians which shall include, but not be limited to, the educational, economic, political, social, and cultural processes by which the general welfare and conditions of native Hawaiians are thereby improved and perpetuated.

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

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

     [Am Feb. 3, 1923, c 56, § 2, 42 Stat 1222; Mar. 7, 1928, c 142, § 2, 45 Stat 246; Nov. 26, 1941, c 544, § 4, 55 Stat 784; Jun. 14, 1948, c 464, § 3, 62 Stat 390; Jul. 9, 1952, c 615, §§ 1, 2, 66 Stat 514; Aug. 21, 1958, Pub L 85-708, 72 Stat 705; am L 1959 1st, c 13, § 2; am L 1961, c 183, § 2; am L 1963, c 114, § 5 and c 207, §§ 2, 5(a); am L 1965, c 4, §§ 1, 2; am L 1967, c 146, § 3; am L 1969, c 114, § 1 and c 259, § 1; am L 1972, c 76, § 1; am L 1973, c 130, § 1 and c 220, § 1; am L 1974, c 170, § 1, c 172, § 1, c 174, § 1, c 175, §§ 2, 3 and c 176, § 2; am L 1976, c 72, § 1; am L 1978, c 229, § 1; am Const Con 1978 and election Nov. 7, 1978; am L 1981, c 90, § 4, c 158, § 1, c 192, § 1 and c 203, § 1; am L 1982, c 274, § 2; am L 1983, c 143, § 1; am L 1984, c 260, § 2; am L 1985, c 284, § 2; am L 1986, c 249, § 2; am L 1987, c 36, § 4; am L 1993, c 145, § 1; am L 1994, c 152, § 2]

     Subsection (f) Set Out Twice. - The first version of subsection (f) set out above is effective until July 1, 1995. The second version of subsection (f) is reenacted effective July 1, 1995.

     Editor's note. - 1994 Haw. Sess. Laws, Act 152, § 6, which amended subsection (f), provided: "This Act shall take effect on July 1, 1994; provided that on July 1, 1995, section 2 of this Act shall be repealed, and section 213, Hawaiian Homes Commission Act, 1920, is reenacted in the form in which it read on the day before the approval of this Act.

     The 1993 amendment, effective May 21, 1993, rewrote this section.

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

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

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

[§ 213.5]. Establishment of special fund.

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

     [L 1989, c 283, § 2]

     Editor's Note. - Section 3 of 1989 Haw. Sess. Laws, Act 283, provides: "The provisions of the amendments made by this Act to the Hawaiian Homes Commission Act, 1920, as amended, are declared to be severable and if any section, clause, or phrase, or the application thereof to any person or circumstances is held to be invalid or ineffective because there is a requirement of having the consent of the United States to take effect, then that portion only shall take effect upon the granting of consent by the United States and effectiveness of the remainder of these amendments or the application thereof shall not be affected."

     Effective date. - This section became effective June 9, 1989.

[§ 213.6]. Hawaiian home lands trust fund.

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

     [L Sp 1995, c 14, § 7]

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

§ 214. Purposes of loans; authorized actions.

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

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

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

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

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

     (B) The liquidation of indebtedness incurred for any of the foregoing purposes relating to farm loans aged less than five years;

     (C) The payment of normal and reasonable living expenses of a full-time farmer;

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

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

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

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

     (b) In addition the department may:

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

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

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

(4) Permit and approve loans made to lessees by government agencies or private lending institutions, where the department assures the payment of such loans; provided that upon receipt of notice of default in the payment of such assured loans, the department may, upon failure of the lessee to cure the default within sixty days, cancel the lease and pay the outstanding balance in full or may permit the new lessee to assume the outstanding debt; and provided further that the department shall reserve the following rights: the right of succession to the lessee's interest and assumption of the contract of loan; the right to require that written notice be given to the department immediately upon default or delinquency of the lessee; and any other rights enumerated at the time of assurance necessary to protect the monetary and other interests of the department;

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

     (6) Use available loan fund moneys or other funds specifically available for such purposes as cash guarantees when required by lending agencies;

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

     (8) Pledge receivables of loan accounts outstanding as collateral to secure loans made by government agencies or private lending institutions to the department, the proceeds of which shall be used by the department to make new loans to lessees or to finance the development of available lands for purposes permitted by this Act; provided that any loan agreement entered into under this paragraph by the department shall include a provision that the money borrowed by the department is not secured directly or indirectly by the full faith and credit or the general credit of the State or by any revenues or taxes of the State other than the receivables specifically pledged to repay the loan; provided further that in making loans or developing available lands out of money borrowed under this paragraph, the department may establish, revise, charge, and collect fees, premiums, and charges as necessary, reasonable, or convenient, to assure repayment of the funds borrowed, and the fees, premiums, and charges shall be deposited into the Hawaiian home trust fund; and provided further that no moneys of the Hawaiian home loan fund may be pledged as security under this paragraph; and

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

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

§ 215. Conditions of loans.

     Except as otherwise provided in section 213(a)(5), each contract of loan with the lessee or any successor or successors to his interest in the tract or with any agricultural, mercantile, or aquacultural cooperative association composed entirely of lessees shall be held subject to the following conditions whether or not stipulated in the contract loan:

     (1) At any one time, the outstanding amount of loans made to any lessee, or successor or successors in interest, for the repair, maintenance, purchase, and erection of a dwelling and related permanent improvements shall not exceed $50,000, for the development and operation of a farm, ranch, or aquaculture operation shall not exceed $50,000, except that when loans are made to an agricultural or aquacultural cooperative association for the purposes stated in section 214(a)(4), the loan limit shall be determined by the department on the basis of the proposed operations and the available security of the association, and for the development and operation of a mercantile establishment shall not exceed the loan limit determined by the department on the basis of the proposed operations and the available security of the lessee or of the organization formed and controlled by lessees; provided that upon the death of a lessee leaving no relative qualified to be a lessee of Hawaiian home lands, or the cancellation of a lease by the department, or the surrender of a lease by the lessee, the department shall make the payment provided for by section 209(a), the amount of any such payment made to the legal representative of the deceased lessee, or to the previous lessee, as the case may be, shall be considered as part or all, as the case may be, of any such loan to the successor or successors, without limitation as to the above maximum amounts; provided further that in case of the death of a lessee, or cancellation of a lease by the department, or the surrender of a lease by the lessee, the successor or successors to the tract shall assume any outstanding loan or loans thereon, if any, without limitation as to the above maximum amounts but subject to paragraph (3).

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

     (3) In the case of the death of a lessee the department shall, in any case, permit the successor or successors to the tract to assume the contract of loan subject to paragraph (1). In case of the cancellation of a lease by the department or the surrender of a lease by the lessee, the department may, at its option declare all installments upon the loan immediately due and payable, or permit the successor or successors to the tract to assume the contract of loan subject to paragraph (1). The department may, in such cases where the successor or successors to the tract assume the contract of loan, waive the payment, wholly or in part, of interest already due and delinquent upon the loan, or postpone the payment of any installment thereon, wholly or in part, until such later dates as it deems advisable. Such postponed payments shall, however, continue to bear interest on the unpaid principal at the rate established for the loan. Further, the department may, if it deems it advisable and for the best interests of the lessees, write off and cancel, wholly or in part, the contract of loan of the deceased lessee, or previous lessee, as the case may be, where such loans are delinquent and deemed uncollectible. Such write off and cancellation shall be made only after an appraisal of all improvements and growing crops or improvements and aquaculture stock, as the case may be, on the tract involved, such appraisal to be made in the manner and as provided for by section 210.5. In every case, the amount of such appraisal, or any part thereof, shall be considered as part or all, as the case may be, of any loan to such successor or successors, subject to paragraph (1).

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

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

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

     (7) Whenever the department shall determine that a borrower is delinquent in the payment of any indebtedness to the department, it may require such borrower to execute an assignment to it, not to exceed, however, the amount of the total indebtedness of such borrower, including the indebtedness to others the payment of which has been assured by the department of all moneys due or to become due to such borrower by reason of any agreement or contract, collective or otherwise, to which the borrower is a party. Failure to execute such an assignment when requested by the department shall be sufficient ground for cancellation of the borrower's lease or interest therein.

     [Am Feb. 3, 1923, c 56, § 3, 42 Stat 1222; Jul. 10, 1937, c 482, 50 Stat 505; Nov. 26, 1941, c 544, § 5, 55 Stat 785; Jun. 14, 1948, c 464, §§ 4, 5, 62 Stat 392; Jul. 9, 1952, c 615, §§ 3, 4, 66 Stat 514; am L 1962, c 14, § 4 and c 18, § 2; am L 1963, c 207, §§ 2, 3; am L 1968, c 29, § 2; am L 1972, c 76, § 3; am L 1974, c 173, § 1; am L 1976, c 72, § 2; am L 1981, c 90, § 6 and c 203, § 3; am L 1982, c 274, § 3]

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

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

      (a) The department may require the borrower to insure, in such amount as the department may prescribe, any livestock, aquaculture stock, swine, poultry, fowl, machinery, equipment, dwellings, and permanent improvements purchased or constructed out of any moneys loaned or assured by the department; or, in lieu thereof, the department may directly take out such insurance and add the cost thereof to the amount of principal payable under the loan. (b) Whenever the department has reason to believe that the borrower has violated any condition enumerated in paragraph (2), (4), (5), or (6) of section 215 of this Act, the department shall give due notice and afford opportunity for a hearing to the borrower or the successor or successors to his interest, as the case demands. If upon such hearing the department finds that the borrower has violated the condition, the department may declare all principal and interest of the loan immediately due and payable notwithstanding any provision in the contract of loan to the contrary. (c) The department shall have a first lien upon the borrower's or lessee's interest in any lease, growing crops, aquacultural stock, either on his tract or share in any collective contract or program, livestock, swine, poultry, fowl, aquaculture stock, machinery, and equipment purchased with moneys loaned by the department, and in any dwellings or other permanent improvements on any leasehold tract, to the amount of all principal and interest due and unpaid and of all taxes and insurance and improvements paid by the department, and any other indebtedness of the borrower, the payment of which has been assured by the department. Such lien shall have priority over any other obligation for which the property subject to the lien may be security. (d) The department may, subject to this Act and procedures established by rule, enforce any lien by declaring the borrower's interest in the property subject to the lien to be forfeited, any lease held by the borrower canceled, and shall thereupon order such leasehold premises vacated and the property subject to the lien surrendered within a reasonable time. The right to the use and occupancy of the Hawaiian home lands contained in such lease shall thereupon revest in the department, and the department may take possession of the premises covered therein and the improvements and growing crops or improvements and aquaculture stock thereon; provided that the department shall pay to the borrower any difference which may be due him after the appraisal provided for in section 209 has been made.

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

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

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

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

In case the lessee or borrower or the successor to his interest in the tract, as the case may be, fails to comply with any order issued by the department under the provisions of section 210 or 216 of this title, the department may (1) bring action of ejectment or other appropriate proceedings, or (2) invoke the aid of the circuit court of the State for the judicial circuit in which the tract designated in the department's order is situated. Such court may thereupon order the lessee or his successor to comply with the order of the department. Any failure to obey the order of the court may be punished by it as contempt thereof. Any tract forfeited under the provisions of section 210 or 216 of this title may be again leased by the department as authorized by the provisions of section 207 of this title, except that the value, in the opinion of the department, of all improvements made in respect to such tract by the original lessee or any successor to his interest therein shall constitute a loan by the department to the new lessee. Such loan shall be subject to the provisions of this section and sections 215, except paragraph (1), and 216 to the same extent as loans made by the department from the Hawaiian loan fund.

     [Am L 1963, c 207, §§ 2, 5(a)]

     Seizure of property. - This section cannot be construed to authorize the seizure of a lessee's property without service of a summons, time to answer, and an opportunity to present evidence and be heard in opposition to the relief requested. In re Smith, 68 Haw. 466, 719 P.2d 397 (1986).

§ 218. Repealed. L 1967, c 146, § 5.

§ 219. Agricultural and aquacultural experts.

     The department is authorized to employ agricultural and aquacultural experts at such compensation and in such number as it deems necessary. It shall be the duty of such agricultural and aquacultural experts to instruct and advise the lessee of any tract or the successor to the lessee's interest therein as to the best methods of diversified farming and stock raising and aquaculture operations and such other matters as will tend successfully to accomplish the purposes of this title.

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

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

§ 219.1. General assistance.

     (a) The department is authorized to carry on any activities it deems necessary to assist the lessees in obtaining maximum utilization of the leased lands, including taking any steps necessary to develop these lands for their highest and best use commensurate with the purposes for which the land is being leased as provided for in section 207, and assisting the lessees in all phases of farming, ranching, and aquaculture operations and the marketing of their agricultural or aquacultural produce and livestock.

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

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

     (2) Acquire an existing insurance company;

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

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

     (c) The department, if experiencing any of the power as authorized under subsection (b) may:

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

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

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

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

     The 1993 amendment, effective June 30, 1993, designated subsection (a), and added subsections (b) and (c).

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

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

     (b) The legislature is authorized to appropriate out of the treasury of the State such sums as it deems necessary to augment the funds of the department and to provide the department with funds sufficient to execute and carry on such projects and activities. The legislature is further authorized to issue bonds to the extent required to yield the amount of any sums so appropriated for the payment of which, if issued for revenue-producing improvements, the department shall provide, as set forth in section 213.

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

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

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

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

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

     (5) Agree to pay the costs of construction of projects constructed for Hawaiian home lands at the request of the department, in the event the assessments paid by the homesteaders upon lands are not sufficient to pay such costs; provided that licenses for rights-of-way for the purposes and in the manner specified in this section may be granted for a term of years longer than is required for amortization of the costs of the project or projects requiring use of such rights-of-way only if authority for such longer grant is approved by an act of the legislature of the State. Such payments shall be made from, and be a charge against the Hawaiian home operating fund.

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

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

     The 1991 amendment, effective July 2, 1991, inserted "; mandatory reservation of water" in the catchline, in subsection (a) substituted "Subject to subsection (d), the" for "The," and deleted "or city and county" following "maintained by the county," inserted "and subject to subsection (d)," in the introductory paragraph of subsection (c), and added subsection (d).

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

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

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

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

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

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

      (a) Notwithstanding any law to the contrary, the department is authorized to enter into and carry out contracts to develop available lands for homestead, commercial, and multipurpose projects; provided that the department shall not be subject to the requirements of competitive bidding if no state funds are to be used in the development of the project.

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

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

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

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

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

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

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

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

     (3) The dates on which the developer must submit to the department for approval preliminary plans and final plans and specifications for the total development. No construction shall commence until the department has approved the final plans and specifications; provided that construction on an incremental basis may be permitted by the department;

     (4) The date of completion of the total development, including the date of completion of any permitted incremental development;

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

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

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

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

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

     (3) The rental shall be reduced in proportion to the value of the portion withdrawn and the developer shall be entitled to receive from the department the proportionate value of the developer's permanent improvements so taken in the proportion that they bear to the unexpired term of the agreement, with the value of the permanent improvements determined on the basis of fair market value or depreciated value, whichever is less; or the developer, in the alternative, may remove and relocate the developer's improvements to the remainder of the lands occupied by the developer.

     (e) The project developer agreement may permit the developer, after the developer has completed construction of any required off-site improvement, to assign or sublease with the department's approval portions of the leased lands in which the construction of any required off-site improvement has been completed to a purchaser or sublessee who shall assume the obligations of the developer relative to the parcel being assigned or subleased, including the construction of any on-site improvement. The department may permit a developer to share in the lease rent from the assigned lease for a fixed period in order to recover costs and profit.

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

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

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

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

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

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

     "Project" means a specific undertaking to develop, construct, reconstruct, rehabilitate, renovate, or to otherwise improve or enhance land or real property;

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

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

     [L 1986, c 84, § 1; am L 1993, c 146, § 1] The 1993 amendment, effective May 21, 1993, in subsection (d), designated paragraphs (1), (2), and (3); added "with the value of the permanent improvements determined on the basis of fair market value or depreciated value, whichever is less;" to paragraph (3); and made minor changes in punctuation and style.

§ 221. Water.

     (a) When used in this section:

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

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

     (b) All water licenses issued after the passage of this Act shall be deemed subject to the condition, whether or not stipulated in the license, that the licensee shall, upon the demand of the department, grant to it the right to use, free of all charge, any water which the department deems necessary adequately to supply the livestock, aquaculture operations, agriculture operations, or domestic needs of individuals upon any tract.

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

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

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

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

     Water systems include all real and personal property together with all improvements to such systems acquired or constructed by the department for the distribution and control of water for domestic or agricultural use.

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

     Editor's Note. - Section 2 of 1990 Haw. Sess. Laws, Act 24, provides: "The provisions of this amendment are declared to be severable and, if any section, sentence, clause, or phrase or the application thereof to any person or circumstances is held ineffective because there is a requirement of having the consent of the United States to take effect, then, that portion only shall take effect upon the granting of consent by the United States and the effectiveness of the remainder of this amendment or the application thereof shall not be affected."

     The 1990 amendment, effective April 17, 1990, inserted "agriculture operations" in subsection (b), inserted "the agriculture operations" near the beginning of subsection (c), and inserted "or" preceding "acquire the use of water" in subsection (e).

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

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

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

§ 222. Administration.

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

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

     [Am Nov. 26, 1941, c 544, § 7, 55 Stat 787; Jun. 14, 1948, c 464, § 8, 62 Stat 394; am L 1963, c 207, § 4; am L 1972, c 173, § 1; am L 1977, c 174, § 2; am L 1986, c 249, § 5]

§ 223. [Right of amendment, etc.]

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

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

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

§ 224. Sanitation and reclamation expert.

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

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

§ 225. Investment of funds; disposition.

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

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

     (2) All moneys received by or on behalf of the department shall be deposited into the state treasury to be expended according to law and for purposes in accordance with the terms and conditions of the gift. All moneys shall be appropriated for purposes enumerated in such gifts and if no specific purpose is enumerated, shall be appropriated to the Hawaiian home trust fund.

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

     (4) The real property or any interest therein received by the department through contributions or grants shall not attain the status of Hawaiian home lands as defined in section 201(a)(5).

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

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

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

§ 226. Qualification for federal programs.

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

     [L 1978, c 204, § 1]

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

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

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

[§ 227]. Enterprise zones.

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

     [L 1986, c 16, § 2]

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

§ 401.

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

§ 402.

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

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

§ 501. Definitions. [For effective date see note.]

     As used in this title if not inconsistent with the context:

     "Homestead general lease" means a lease for residential, agricultural, pastoral, or aquacultural purposes issued under this title;

     "Homestead general lessee" means the lessee under a homestead general lease and the successors in interest of the lessee.

     [L 1986, c 75, pt of § 2]

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

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

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

     (b) The department is authorized to enter into agreements, including leases, subleases, conditional leasing agreements, or other agreements or combinations thereof, with one or more developers without recourse to public auction for the construction of off-site and on-site infrastructure improvements and for the development of tracts or residential units on Hawaiian home lands; provided that the developers' lease and security interest therein will be retired on a pro rata basis by the issuance of either homestead leases or homestead general leases to native Hawaiians purchasing the subdivided lots and the improvements related thereto; provided further that no state funds shall be utilized.

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

     [L 1986, c 75, pt of § 2]

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

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

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

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

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

     (d) When constructing any improvements on the premises, the homestead general lessee shall comply with building standards and requirements established by the department.

     (e) The premises shall be used for the purpose prescribed in the original homestead general lease and shall not be used for any other purpose without the prior written consent of the department.

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

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

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

     [L 1986, c 75, pt of § 2]

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

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

     The original lessee of a homestead general lease shall be a native Hawaiian or native Hawaiians not less than eighteen years of age.

     [L 1986, c 75, pt of § 2]

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

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

     The following shall not be eligible to receive a homestead general lease:

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

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

     [L 1986, c 75, pt of § 2]

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

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

     (a) Homestead general leases in a new subdivision created under this title shall be offered and awarded in the following priority order:

     (1) First, to applicants on the appropriate waiting list (residential, agricultural, pastoral, or aquacultural) of the island on which the lots are located, in rank order based on rules of the department;

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

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

     (4) Finally, to any native Hawaiian who is at least eighteen years of age, based on the date that written applications are received; provided that the department shall not be required to maintain the applications received as a waiting list for other subdivisions subsequently created.

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

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

     [L 1986, c 75, pt of § 2]

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

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

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

    [L 1986, c 75, pt of § 2]

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

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

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

     [L 1986, c 75, pt of § 2]

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

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

      In the event of a breach or default of any term, covenant, restriction, or condition of any homestead general lease or other instrument issued under this title, the department shall deliver a written notice of the breach or default by personal service or by registered or certified mail to the party in default and to each holder of record having any security interest in the land covered by or subject to the lease or other instrument, making demand upon the party to cure or remedy the breach or default within sixty calendar days from the date of receipt of the notice; provided that where the breach involves a failure to make timely rental payments pursuant to the homestead general lease or other instrument issued under this title, the written notice shall include a demand upon the party to cure the breach within not less than five or more than thirty calendar days after receipt of the notice. Upon failure of the party to cure or remedy the breach or default within the time period provided in this section or within such additional period as the department may allow for good cause, subject to section 510, the department may exercise such rights as it may have at law or as set forth in the homestead general lease or other instrument.

     [L 1986, c 75, pt of § 2]

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

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

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

     [L 1986, c 75, pt of § 2]

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

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

     After giving notice of breach or default as provided in section 509, and subject to the rights of each holder of record having a security interest as provided in section 510, the department may terminate the homestead general lease or tenancy and take possession of the leased land together with all improvements placed thereon, without demand or previous entry and without legal process, and shall retain all rent paid in advance as damages for the breach or default.

     [L 1986, c 75, pt of § 2]

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

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

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

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

     (A) The original cost to the homestead general lessee;

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

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

     (2) After the end of the tenth year from the date of the original homestead general lease, the department shall have the first option to purchase the improvements on the lot at a price not to exceed the appraised value of the improvements.

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

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

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

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

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

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

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

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

     [L 1986, c 75, pt of § 2]

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

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

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

     [L 1986, c 75, pt of § 2]

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

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

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

     [L 1986, c 75, pt of § 2]

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

§ 515. Administration. [For effective date see note.]

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

     [L 1986, c 75, pt of § 2]

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

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

     This title is repealed five years after consent to this Act by the United States or December 31, 1995, whichever shall first occur.

     [L 1986, c 75, pt of § 2]

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