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HomeMy WebLinkAboutCOM 0178.003 2002-2004 CARLSMITH BALL LLP A LIMITED L.IABILITv LAW PARTNERSHIP PACIFlC TOWER, SUITE 2200 1001 BISHOP STREET ~ ~ ' ~ ' HONOLULU, HAWAI196813 TELEPHONE (808) 523-2500 FAX (808) 523-0842 W W W.CARLSMITH.COM DIRECT DIAL NO EMAIL NO. REPER6NCE NO. (808) 523-2554 CI2IMMERGiCN2L5M[TH.COM 0 1 23 74-1 80 March 28, 2003 The Honorable Leningrad Elarionoff, Chairman Public Works and Intergovernmental Relations Committee Hawaii County Council 25 Aupuni Street Hilo, Hawaii 96720 Re: Resolution No. 55-03: A Resolution Supporting the Acquisition of Wao Kele `O Puna By The Tides Foundation Dear Chairman Elarionoff: INTRODUCTION This letter is written on behalf of the Trustees of the Estate of James Campbell, Deceased, owners of the land that the Resolution purports to affect. As the Committee is well aware, the Trustees are the fiduciary governing body of this private trust on behalf of its beneficiaries, who are the descendants of James Campbell and his native Hawaiian wife Abigail Kawat3anakoa. The Resolution should be tabled, not reported out of committee and not otherwise considered further because (1) it is not appropriate for the Council to single out one piece of land and one landowner for treatment under the otherwise uniform laws of the State of Hawaii, unless the County Council is properly exercising its power of eminent domain, and (2) as worded, the Resolution is full of express inaccuracies and "spin" inaccuracies. This letter is written on behalf of the Trustees by Gary G. Grimmer, the Trustee's lead attorney in the litigation since 1999 (the litigation commenced in 1989). Mr. Grimmer is a partner in the law firm of C'arlsmith Ball LLP. Mr. Grimmer was born in Honolulu and raised in Hilo, where he obtained his high school diploma from St. Joseph High School. Mr. Grimmer attended college and law school on the U.S. Mainland and has practiced with Carlsmith Ball in its Hilo, Kona and Honolulu offices since 1976. 4 Comm. N0. • •7 File No. Ref. Tor~~ ~w~~i HONOLULU ~ KAPOLEI ~ HILU ~ KONA ~ MAlll ~ GUAM $All'AN LOS ANCR[S Wq~Q~IGpN, D.'qQ~ Ref. Date n~'I{ 1 The Honorable Leningrad Elarionoff March 28, 2003 Page 2 HISTORY OF THE LITIGATION In December 1985, the State of Hawaii (State) exchanged approximately 27,800 acres of public "ceded" land, including the land in question and other Puna lands on the Island of Hawaii, for approximately 25,800 acres of land owned by the Estate of James Campbell, Deceased (Campbell Estate), also located in Puna. Pele Defense Fund (PDF) filed suit in 1989 seeking to undo the exchange on the alleged grounds that it was a breach of trust and a violation of laws and demanded the return of the exchanged lands to ceded land status via a constructive trust or another land exchange. Another issue raised by PDF was that it was improper for Campbell Estate and other defendants that are no longer part of the litigation, to exclude PDP members from the land because that violated their right under Article XII, Section 7 of the Constitution of the State of Hawaii ("Access Clause"). Former Judge Ernest Kubota dismissed the entire case. PDF appealed. By opinion issued on September 28, 1992, the Supreme Court of Hawaii affirmed the dismissal, except that it remanded for further trial regarding the limited issue of the Access Clause. By the time of the remand trial, Judge Kubota had retired and Judge Riki Mae Amano presided. The trial was held in August 1994. Judge Amano issued a verbal announcement in 1996 that PDF had prevailed on the Access Clause issue. Per Judge Amnno's request, the parties immediately provided her with proposed Findings of Fact and Conclusions of Law and Judgment. Judge Amano did not act on same for several years. In ]ate 2000, Campbell Estate decided that the land was not a core Estate asset and to list it for sale. In preparing to list it for sale, the Estate asked Che undersigned to begin negotiations with PDF's attorneys to see if the lawsuit could be settled. Over the next year Campbell Estate's and PDF's attorneys were unable to reach a settlement and Campbell Estate's attorneys asked Judge Amano to issue Findings of Fact and Conclusions of Law and judgment. Judge Amano spent several months supervising further settlement meetings between the parties. No settlement was reached. Judge Amano issued Findings of Fact and Conclusions of Law and Judgment on August 26, 2002. A copy of these are enclosed. Judge Amano has also now ruled that neither party is entitled to recover attorneys' fees from the other and that both parties are entitled to recover part of their litigation costs from the other because both had prevailed on at least one issue. Judge Amvio is expected to sign orders during the week of March 24, 2003 awarding Campbell $2.195.87 in costs and PDF $42,528.36 in costs. PDF has stated that it intends to appeal from the ruling denying its attorneys' fees. Campbell has not made a final decision nn appeals, but probably will not appeal. However, it may cross appeal on the issue of costs if PDF appeals from the ruling on attorneys' fees and/or costs. Neither party appealed from the substantive decision contained in the August 26 Judgment concerning the Access Clause. For many years now, the lead attorney for PDF in the litigation has been the Native Hawaiian Legal Corporation and Allen T. Murakami, Esq. in particular. It is the Trustee's understanding that Mr. Murakami is the author of the Resolution in question. Neither Mr. Murakami or Tides Foundation advised Campbell Estate of the proposed Resolution. The Honorable Leningrad Elarionoff March 28, 2003 Page 3 OTHER BACKGROUND INFORMATION The land in question is on the boundary of the Hawaii Volcano National Park. It is remote and rugged, and visited and used by the very few people. [t is located in the primary area for geothermal energy exploration and development. The land exchange between the State and Campbell Estate followed a series of studies and hearings, and the designation of a portion of the Kilauea Middle East Rift Zone, located primarily within the land, as a geothermal resource subzone. The designation of the geothermal resource subzone and the granting of a geothermal development permit were reviewed and upheld by the Supreme Court of the State of Hawaii on appeal from the Board of Land and Natural Resources decision. See Dedman v. The Board of Land and Natural Resources, 69 Haw. 255 (1987), cert. denied, 485 U.S. 1020 (1988). About a year after the exchange, Executive Order Number 3103, designating the land as part of the State's Natural Area Reserve System, was cancelled by Executive Order Number 3359. Thus, agencies in the executive branch have previously determined the land is suitable for development as a geothermal resource. The exchange became effective when the Legislature failed to disapprove it by April 23, 1986, the last day of the 1986 legislative session. At the present time, the State of Hawaii has taken over the geothermal wells located on the property that were developed by True Energy Geothermal Corp. and the University of Hawaii. Campbell Estate listed the property for sale with its brokers, Colliers Monroe Friedlander, lnc. on January 10, 2001. Sometime thereafter, PDF began lobbying the Tides Foundation ("Tides") and the Trust for Public Lands ("Trust"), both of which are headquartered in San Francisco, California, to acquire the land and place it in their preservation inventory. PDF even surprised Campbell Estate's attorneys and Judge Amano by showing up at the May 4, 2002 settlement conference with Gregory D. Hendrickson, one of Trust's attorneys. Campbell Estate doesn't Know if Tides and 'trust are working together to possibly acquire the land. The Trustees' fiduciary responsibility is to sell the land at the highest price that can be obtained. So far, Tides has not submitted an offer and Trust has not submitted an offer that is acceptable to the Trustees. The offer received to date from Trust has terms and conditions that are not in the best interest of Campbell Estate and the parties have yet to have discussions about price. Tides and Trust are experienced acquirers of lands for public preservation purposes. They are undoubtedly aware that they are competing in the open market place to acquire the land. Whether or not Tides or Trust support this Resolution, the Resolution is aimed at getting Tides or Trust an advantage in the purchasing process. INACCURACIES AND INCOMPLETE INFORMATION CONTAINED IN THE RESOLUTION In addition to the difference between the facts which are set forth above, and the Resolution's misstatements generally, other inaccuracies are discussed below. The Honorable Leningrad Elarionoff March 28, 2003 Page 4 The Resolution states a Judgment has not yet been entered. As stated above, Judgment was entered on August 26, 2002. The Access Clause gives native Hawaiians the right, under proper conditions, to go on undeveloped land for customarily and traditionally exercised subsistence, cultural and religious purposes. Judge Amano's Judgment confirmed that right on this land for gathering for subsistence and cultural purposes. PDF conceded at trial that it was not pursuing a claim that the land had customarily and traditionally been used for religious purposes. The Judgment expressly provides that Campbell Estate or its successors may petition and receive further development rights on the land. Native Hawaiian access to the land and geothermal energy development are not mutually exclusive. 1'he lawsuit does not concern Campbell Estate or True Geothermal's compliance with permits and licenses for geothermal activities. The State has not cited either for any failures in that regard, including any failures with regard to remedial activities mentioned in the Resolution. Pursuant to the agreements with the State, the State committed to monitor geothermal activity of the wells on the land, including State of Hawaii Well No. 4 which was installed by a Department of the University of Hawaii. The Judgment specifically reserves Campbell Estate's right to further develop the land and Pele's Defense Fund's right to lawfidly challenge such development. It remains to be seen what type of development would be appropriate and permitted. Campbell Estate has not abandoned development of geothermal energy on the land. Campbell Estate has the land for sale and doesn't have any plans at all for the land except sale. However, one category of interested purchases would be those entities interested in geothermal energy development. There is no valid scientific study, or any other study for that matter, that supports the proposition that the geothermal development of the land to date has caused alien species biota to invade the area. There is no evidence that preservation and protection of the land is in the public interest. In fact, the acts of the Executive Branch of the State and the L,egislature's inaction in 1986 indicate that geothermal development on the land is in the public interest. Passage of the Resolution would unlawfully interfere with private ownership of land, including the private owner's right to sell the land to whoever it desires. The Council has no authority to support one purchaser over another, unless the Council wants to exercise its own power of eminent domain. The Resolution will expressly have the Council supporting acquisition by Tides for pw poses of preservatiar and protection. Other types of interested buyers would include those interested in developing geothermal resources, the military, the National Park Service or even a wealthy individual desiring a secluded hideaway. The State and County already have land use ]aws and regulations concerning protecting conservation lands, Hawaiian burial sites and traditional uses under the Access Clause The Honorable Leningrad Elarionoff March 28, 2003 Page 5 and uniform statutes. It would be inappropriate to pass this Resolution, which singles out one area and one landowner as compared to relying on the uniform laws already in place. Respectfully submitted, The Trustees of the Estate of James Campbell, Deceased by and through their attorneys Carlsmith Ball LLP B Gary . G m e 1498994.1.012374-I SOdoc. FEt-=J ALAN MiJRAKAMI 2285 NATIVE HAWAIIAN LEGAL CORPORATION 1164 Bishop Street, Suite 1205 2~i~[ ° uv ~ 6 ~ Honolulu, Hawaii 96813 Telephone: (808) 521-2302 C.OKAWA.CLERK THIRD CIRCUIT COURT JAMES M. DOMBROSKI 3622 STATE OF HAWAII LAW OFFICES OF JAMES M. DOMBROSKI P.O. Box 751027 Petaluma, California 94975 Telephone: ('707) 762-7807 STEVEN C. MOORE Pro Hac Vice NATIVE AMERICAN RIGHTS FUND 1506 Broadway Boulder, Colorado 80302 Telephone: (303) 447-8760 Attorneys for Plaintiff PELE DEFENSE FUND IN THE CIRCUIT COURT OF THE THIItD CIRCUIT STATE OF HAWAII PELE DEFENSE FUND, CIVIL NO. 89-089 (Jlilo) (Declazatory Judgment/Injunction) Plaintiff, vs. FINAL JUDGMENT; EXHIBITS "A" AND "B" THE ESTATE OF JAMES CAMPBELL, DECEASED; W.H. MCVAY AND P.R CASSIDAY, in their fiduciary capacity as Trustees under the Will and the Estate of Trial Date: August 2, 1994 James Campbell, Judge: Hon. Riki May Amano Defendants. FINAL JUDGMENT Pursuant to the Findings of Fact and Conclusions of Law entered herein on 2 s 2~~, this court hereby enters JUDGMENT finally resolving all claims as to all li hereby certify that this is a full, true and totted cop u riginal on file in this office. Cbrq Third Cirwit Court. Smto of I'kwoy parties in favor of Plaintiff Pele Defense Fund (hereinafter PDF) and against the Estate of James Campbell as follows: 1. The Estate of James Campbell, its Trustees and each of their respective agents, employees, officers, heirs, personal representatives, successors, assigns, and beneficiaries, including successors in interest to 27,785.89 acres of land situate in the Puna District of the County of Hawaii, State of Hawaii (hereafter, the "land"), as described in the attached Exhibit "A", aze permanently enjoined from excluding the following persons from entering the undeveloped portions of the land and using the developed portion for reasonable access to the undeveloped portions, (the developed areas aze defined on Exhibit B attached hereto), to perform customarily and traditionally exercised subsistence and cultural practices: (a) Hawauan subsistence or cultural practitioners who are descendants of the inhabitants of the Hawaiian Islands prior to 1778; (b) Person or persons accompanying Hawarian subsistence or cultural practitioners described in (a); or (c) Persons related by blood, marriage or adoption to Hawaiian subsistence or cultural practitioners described in (a). 2. For purposes of liability, all persons listed above aze not invitees of the owner of the land. 3. Notwithstanding that this judgment includes a "permanent" injunction, the Estate of James Campbell and successor owners of the land, aze not barred from and may seek to develop the undeveloped portions of the land consistent with applicable law; and PDF may oppose further development by lawful means. 2. 1 4. The owner of the land shall give PDF notice of any and all proposed future development prior to application for any state or county permits, or the initiation of any development-related activity that does not require such permits. On Januazy 1 of each calendaz yeaz, PDF shall inform the owner of the land of the name(s) and address of its designated officer(s) for purposes of this notice. 5. PDF shall submit a monitoring plan consistent with this Judgment to the owner of the land within six (6) months after entry of this Judgment. If the parties aze unable to agree on the terms of the monitoring plan, either one or both parties may request Court instructions. 6. The Court shall retain jurisdiction to enforce this Judgment and the permanent injunction. If enforcement is necessary, any parry in violation of the terms herein may be subject to contempt of court and sanctions, including but not limited to the payment of costs and reasonable attorneys' fees. 7. This judgment constitutes the final resolution of the all claims against all parties. There aze no other outstanding claims or defenses which have been left unresolved. m ~ ,,,,..,1+ DATED: Hilo, Hawaii, +'',-.r.7 ~ , 2002.x!-~,,-T~~ ~c~. G'~\ I ~ fT 5_' y i y~1 Riki May Amano ~r,F Judge of the above-entitled Co' o ` ~ ~ APPROVED AS TO FORM: er o E. Attorneys for Defendant Trustees of the . Campbell Estate ia~mzs.z Pele Defense Fund vs. the Estate of James Campbell, Deceased, et al. Civil No. 89-089 (Hilo), Declazatory Judgment/Injunction 3. - ' J i ,l( f3"~ ~ ~ ^ ~.ft'S~ 3~ j~ Y 1ThV° ~ t i..cl'.e^ s . c ) it~'fi5'+:f I;.Y"k ~'~~"'i n~ •:x~ # , er.Jc xrtir:. :t; 3.~ , .A- ' a. ya ~ c~ ~ 81TATi O~ NAWAII :A• ' '+'..i,'..'.., WRYft pYlegM 4~~~•..-::_ 3 - nv(. er aceoewnuo u:o eswte44 es.vrrn •q~'eL:~ 20.7E ,eruwr Dece~Dez 17, 1183 • 9oR21au a twv2aromrr utme or wtsDO, Rnaez, unm, c~4, RIluw 611D tMIAILI - tltC6 A Pepe, 2•l.od e! 8•reli, 8rai1 - taRlnniy •t cL rut utn•r e( chle parcel oC lmd end ee tM eoeth ~be,mdatS of land tour[ 4ppliutloe 1057, CL coosdlnetu et [aid polar of b•tlnnlni nla:zad to Goz•t~mt lurnr Ttl•nryLtloe Ltetlea ^OW" b•1aR 47,769.67 lut 6outh •ad [22[:41 tnt Yut, thaau ttmiee ' br atiauche rasurad eleckv[ae tsoe Stye BoatA:- 1. 240' OS' 12" 24,Ibe.19 i••c eloa8 End Court Appliutlea 3037( ' 2. KS• 27' 70" 1)4!.57 !••t alenR tM rs.aiad•z o[ co•ee~mt ' Lnde; 3. ]17' 00' 1221.60 lut cloy cM teeuiader of Co•etseat Ld•; ~ 4. ]70• 16' 1682.30 f••t eleaR the zselader o! Co.eta.eae 3 S. 262• 07' 1960.70 I••c doa8 the tealnder of Coz•tta•ot Lode: 6: 290' 02' 627.40 I••c alo:y the rminder o[ Caveru•at Lad•; 7. ]14• 2e' LSel.80 bat elan{ the reulod•r e[ fdvervenc Ens.; e. 714• l7' )44.40 !ut .lone the reulad•r et Go~ersent Lnde; 9. 714• 12' 775.70 f•ec along the rmlad•r of Cowtment Lade l ~ 10. 313' ]1' le2S.57 (•ec alon8 c1u res,acnd•r o[ Co•etaene land[: ,Q); 11. 40• 41' 17.61 L••c along the north aide o! 20-Foot Rued; EXHIBIT "A" M'~>. _l -1- ` ~ , t • ~ . H . .t1 ~1 v .1r:. efi:~e ! 1:9523°'.166- . F C'.319 r~ ' ~ ' ' ~ D.caaNer 11. 1915 i~.e,':.~. "12.' 171' ~ SS' 16.99 tfa.[ alaot CM veae aide et 20-Toes s -y~ , 'y. ~ 11. 60• ~ OS' 12" 23,660.22 fnt dmt Tareal D of Covernaent Lodi is . ~ - 16:.160• 21' 16,220.16 fut loot (areal 6 0l Govctaenc Land. to cAe Dolnc of Eealmlot and eoocalniet .o AAG OP 9.012 ACtT9. SONC7 DIVISION DLTANIT07fi OT ACCOONIING AND Gf]OOtAL SLNICES 57AIL OT tA1+AII sr: lr • ~ ~ L ~ S. Naku,n Laed Yi~e]ei Dt Co~pll.d lroe CST 6117. . CST 16,617 and Gout. Sui+q Lwrde. n t1 mD N 1 ` A , r ~~:1 Tii ~ ~t ~ 112 ~ ?,I~ +~I? '~1~ ,I~I~tIl~l11?I~IE,I1~ f ~ }.I Y i 1 I ~1,~ g ( l~N i' • _ end 45 r ~ 's~µ°~f;~^~~~~~7~*iir'S~T?n'}~.J~~S»"~{''. ~•ry~• I'~3.i v. ;3-~'~`~~, ts~~~,,~~,~~ ~ ~ r ..y s ~ 19523 461' ~r ~ , i _ + - ~ S7AT[ O/ HAWAII sY[v[r omsa>ta p[/T. OI aCCOY1Ta,e aMe OO,[14L a[IIYICie cy,M 20.716 ,seauaa Dacaaber 17, 1985 roxnoHS m covtxwvl[r wms or HATDO, IAOB2, xAD01, [27mti. xATAABp AHD iAMAILI TAtm 8 Tvae, Is1ad et Lrail, Bavsll Mtloetn[ at LM raa urur et tbls Parul of land fed ac an ~ . ao81a oe tba awtb bo:md?rT o! Land Court Apr11ut1on 1037, tba eoerdl- ' netu of aald point o2 ba;lmin8 retatrad to Oegr~ent Survq Sriantnls- else Bcetiw "OLM" belat SS, 748.70 Lec Bovtb ayd 22,096.90 tea Wst, tbenu tvnni,y br eiLatM sawed tleckvlsa tros T'sva Soeth:- ,1. 210' OS' 12" 16,000.00 Leat u+•[ Led Coutt Arplleacleo 103]; • 2. 720• 23' 16.220.18 Aet along fatal A o[ Govetwnat Leda; 1. 240• OS' 12" 23,Ba0.22 teat alon8 fatal A of Co+er~ea[ ^ Lode: m 4. 778• 15' ]262.76 leac aloof td vat aide of cbe 20-Feet bed; P ' ~ S. ]AO• 27' 19.26 feet alon8 tM vest aide of the 2O-Poet xosd; 6. M2' ]1' 250.31 Lea alon8 cba wsc ada of tM 20-Poet read: 7. 777' 27' 136.17 [nt aloe[ cha ves[ aide of eM 20-Feet bad, J- 8. 747• li' 271.0 teat alon8 tbs vest elda o! tbs 20-Feet road; 9. 748' ]B' 771.85 fast alont cba vest aide of cbe 20-Poet * road; ~f'. 10. 13]' Sl' 125.10 feet aleni tbs vast aide o[ ibe 2D-Yost road; 11. 739' ~ ]0' 12)8.10 feet aloo[ tba veer aide of tba 20-Foot _ V ~ lbad; ~~~1 ~3 . ~ -fir 4tx ' , ' + r ci , , 'd n 'i ~t{ c: ` s:~ ar,A..,,~:;_: 19523 962 f ` . ay.~ 20.716 • - ~Dacesbes 13. 1983 1T. 758' S9' 2126.77 fast aloof tM vest side o! eM 20-foot Rwd; 13. 732' 78' 221.69 feat •looa the rent side of the 20-Foot ~ Road; 14, 315' 33' 287.92 feat along the vent aide of the 20-Foot Road; 15. 258' 17' 9.45 feat aloof [he south aide o! tM 20-Foot Road; - 16. 352' 29' 6915.35 lent ?lona Parcel [ o! Governmsat Lands; 17. 56' 17' 1460.60 feat aloof ]sts }R and 3-A of Upper Ra1au Bameawda; ' 18. ]9' 38' 3534.10 teat alone Loc }A of Oppez Ra1nm Hoarc- •ceads, Grant 6571 Co R. Ramduni, Gtane 6330 to 5. Rmelamela and Grant 6728 to D. taa,elas,ela; 19. S]' 04' 10,520.90 feat aloof Corerzuenc Lands; 20. S3' 31' 10" 9863.30 feet aloof Oran[ 9275 to B. H. Molt, eL al., Truacee• under the V111 ? and of the Etuce of 3aaaa Campbell, Deceued; 21. 148' 00' 6100.00 feat alone R.P. 8070, L.C.Av. 8539-D, Ap. 14 [o vl111u C. Lwalilot 22. 116' 00' 8150.00 test alone R.P. D030, L. C.Av. BSS9-8,. n Ap. 14 eo YSllia C. Lunalile; 23. 126' S9' 2S, 1O5.3D feat alone R.P. 8030, L.C.AV. 8559-8. m Ap. 14 to 171111am C. Luulllo, co p the point of bealnnla6 and eontaln- ~ iaa an AREA OF 16.843.891 ACRES. Esc<9t1oa and teaetvlna therefrom all a:istlna trails vlthla the above-described Pareel 8. SURVEY DI715ION ^z'j• D[PAR1743tL OF ACCOUNTING AND GENERAL SERVICES STATE OF HAWII ~:~'~:j.~ fem. 1. ~ ' , e .n !•Rayan S. Nakam,ra 9. i.•' ~'-y[ t Land urveyoz ~ L ' Compiled Eros CSF 18,647 ~'f a~~ '2 .3 ~ and other Govt. Survq I ~ Records. ,i ^ i~.:, r. , s :i~: x, •:-.~:',::~~:-:;.w, 19523 963 Y'." STAT[ O~ HAWAII wwvn omaaaw 20.717 ~ oan. or accoutmaw Awe a{nanAt naer:en ca.r... Decmbar 17, 1915 fOR7I088 Ot GOPfltI00'M LR2ID5 Oi RAMAILl, RE11Ft2U A110 uRA1J, rARrn. e Puw, Island of Havnii, 8ara1[ 3atlmiee at cM aut corner et this Pnrnl of land, w [M anuth boundary of loyal PatAt 6f7S, Land Patent 8199, Laed CowLafan Award 7)17, Apasa 17 to P. Raamalu and a[ [M north corner o! Crant 7763 to J. Tau, rM aoordlnacas of aald Po[at o! Dglmiae ralarrad to Cozarn•. sent Survey-'Irlaneulation Statloo ^lAi.IU" ba1a8 115.60 fut 6outh and 9725.70 tact Wat, thaata runnlae by n1a+tL rasarad docbin trw Sew . Seuth:- 1. L6• 00' ~ 982.00 teat ¦].oee Osant 7765 co J. K. Pau: 2. 85' 00' 652.00 feat alone Grant 7765 to Pau; • 7. 58' 45' 1050.00 lent alone Grant 7163 to J. Pau; n m 6. 77' 70' 1003.00 last alone Grant 7367 to Vn. e Ralilhewalu; S. 45' 66' 1197.50 feat alwe Orant 7517 to v. I. 1a111Mooaln; 6. 179' 03' 50.08 [eat alwe tM north sldn o[ SO-Foot head; , v. 7, i5' 66' 3061.16 feet alto{ the rent slda of SO-Foot Rosd; B. 16' 30' 2051.31 Leat alone the vent slda of SO-Foot .a ' ' .i ~ Road; ' 9. 78' ]a' 1719.67 feat alone cM vent nlda of SO-Poor 1 s + Road; ~ :da.. a~•, 10, ]27• 16' 2781.65 feet alene cM Hooch side o[ 10.Foet ~~'?~'ry.T11 ~ i~ r 1 Road: - 1:.. >et F;l .s 11. 270• DO' 981.59 feet alone eM Hooch alda of SO-Foot :i': ~ ~ {fiµ~ ~ Road; 't ::{~~'~~'~'J ,t ~ n j t f .t`...;~ • _ 19523 469 asr.a.. •20.717 Deee++bez u, 1985 12. 316• 70' 149].59 Aat along the south aide of S0.ioot Doad to the oorthveat aide of Upper luau Doad; 13. Therm al ep{ cha nozthvut dda e! Uppei Pnpa Road, the ditaet asLUth sad dlacmce beln{: IT k3' 20" 4458.54 [set: li. SS' kl' 15" 111.71 feat glen{ the nortMest alda of Upper Puoa Dowd; 15. Them alapg [Ae norchreat aide o[ Upper Puna Road oo • cure to the zlght vlth • tadlua of 150.00 lest, the dnrd a:lsuch and dlatapee beln{: 79' D1' 15" 118.82 fact; 16. 102' 21' 15" S1D.59 feet along [he nortMesc aide of Upper . Pupa bad; , 17. Thmca along che~norchveat aide of Upper Pusu Road on a curve to the left vlch • radius of 250.00 tact, the chord aslaa,th and • dlatance bsln{: J7' O1' 15" 215.94 tact; 10. 51' il' 15^ 2Dk.7k feet elm{ [M noztMeat aide o! Opper Pwa Road; ' 19. 77unce along the northuvat aide et Uppet Ama Road w • turn Lo the ziiht with • radiw of 675.00 feet, the cAOtd asiawth sad ~ distmea Deing: ~ SS' Ol' 1S^ 55.24 feet; 0 20. 56' 21' 15" 754.79 feet aloe{ the norcMesc aide of Upper e Puu Dowd, 21. 7henee along the notihveat alda e! Upper Pupa Road on • curve to the left inch a zadlua of 450.00 Lest, the chord aslauth sad diacaau MSa{: 50' k6' 15" 11D.77 feet; 22. 135' S0' 1250.91 lest alon{ Ozmt 7731 to L. Dva1a; v n 27. 151' 30' 3467.50 feet along Orant 7593 to Louisa Svain, •t } Gtmt 7478 to L. E. DLladell and the northeast end c[ 50.Foot Y Road: a _v: 2k. 127' 75' 2177.00 feat along Lot TTI-D o! Upper Ka1su . Noaesteada; .d; ~y . 25. 172' 29' 6915.35 (ea[ alon{ Patcel D of~ 0oveinment Lmda; .:i :-a'•• 26. 258' 17' 139.94 test aloe{ the south aide o} 20.Foot "l q ~i ~ Road: t'~_:f ~ 21. 2ii' 12' 634.60 feet alon{ tAe south side of I0.F000 r ~ d Road; :i:~f :y. s_ . t. ' [ M , o y .16F'~1 ti--~ s .it y, r,a. 1`ik.y v. ~~s: l~'f,>~~;~.. .:~'.~'~k _ ' , r .`.19523 .965 . "hQ ,cas.ww~.y~`;"%; ~ D•cmbar l7, 1983 r , - •.~28. ' 195' ~ 08' 797.80 feat afoot tM awch aide of 20-Fwt bad; 29. 23i• 12' 783.69 fact alert tM mouth aide of 20-Foot head; 30. 254' 03' 1202.89 faai aloe{ tM south aide at 20-Foot bad; 71. 254• i8' I87. 02 feet alert tM south aide of I0.Foot Road; - 72. 242• JS' 876.64 Leec alomt eM south aide of 2D-Foot bad; ]J. 243' 28' 581.03 tact alert tM south aide of 20.Fwt Road: 34. 242' 17' 579.85 feet aloof [he south aide of 20.Foot Road: 75. 246' 20' 20.81 feet afoot tM awch aide of 20-FOO[ bad; J6. 240' 31' 1658.87 feet aloof eha awch aide of 20.Fooc bad; 37. 240' 4J' 707.62 feet alert tha couch aide of 20-Fdot. bad; 78. ]D9•, OS' 1550.70 fact abet R.P• 4475, R.P. 6683, L.P. 8200, L. C.Av. 7713, Ap. li • [o V. Raaaoalu; J9. 296' 22' 757.00 [sat slant R.P. 4673, A.T. 6883, L.P. 8200, L. C.Av 7717, AP. 14 ~ to V. t+mualu; m 40. 286• 00' 2750.00 feet alomt A.P. 4475, L. P. 8199, o L.C.AV, 7717, Ap. 17 co V. Aaaualu ,e co cM point of Detlnnimt and coo- talmint am AAFA -0F 1970 ACRES, 710RE OR L1S5. Esceptint mod reartvlnt cherefroa all ealstint trolls vichin the abe.e-deacrlbed Pareal D. a• 311RVE'i DIV1510N DLPARIT47LI OF ACCOID•IINO AND GENERAL SERVICES S7A7E OF HAVAI2 ' ~ Y H 8Y ~ ~ ~-t; i~ M n 5. Nslumura a~'~;'.~~- Lan rve7or y : _ ~ iR Compiled from CSF 9646 ~ Y a~ a~ Dt .i^sx~ ~ '~3'i: and Gov[. SurvaP Reeorda. ~yi ~ 1 l i'Tj r i. • i./'~.. d~j' j. -y. ~~w + ` al: 1 ~ ~ \ 1 d i 1 e r +r ' 1 rC~'+i 4 .e~i~=f'i':rl.:~f i~.fi. {':Z r.- 3 •7^'~`..x - _ '4 V •i{V.~'~.. ~ pig,. I ! ~ ? G ~ 7: eta y.~~^,T :+;:^u..~ 40 ~~~r`, .ry ..~t~:: {.;r. :,'.a°.. "R.`;' O •M e~ 1 7 ~ r . •d~M~^l.~r~f:' r,t'~i:~~f oev.rnerr.n+ iand. ,.o ~,,a . ~b~o1 cce~ .eelj ~ ~ 1 ay i . 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I~~'~ tit r~ t3• T +T. 6 S { s ~ <.1.:: u z:•i Il l{ . ;N .1 :i.G:5'li:~:.i.: ~ .J ~'.'£,T.. ` /i., iT . ~j] ` ~ S' J..f~y'r ..T ~ JJ ! ~ 'il. 1.:7 f ~l. 1 l 1 1 1 ~O i1 C~ ~ {t~j~~ ! ~P; co ~ ~r ~ ~°1 ~`ibl~1~eu~At}~°[~ fi'D ~ ~i R' 1 { - . t EXHIBIT DEVELOPED AREAS The developed azeas as of 7anuary 1, 2001, aze the access road, geothermal drill sites and azeas cleared for geothermal drill sites. - ~l ALAN MIJRAxAIvn 22ss NATIVE HAWAIIAN LEGAL CORPORATION 1164 Bishop Street, Suite 1206 Zu~2 ACG C6 ~~1 f0~ ~L Honolulu, Hawaii 96813 Telephone: (808) s21-2302 C. p~{p~?;q, CLERK TN81A7E OF HAWAiRT JAMES M. DOMBROSKI 3622 LAW OFFICES OF JAMES M. DOMBROSKI P.O. Box 761027 Petaluma, California 94975 Telephone: (707)762-7807 STEVEN C. MOORE Pro Hac Vice NATIVE AMERICAN RIGHTS FUND 1606 Broadway Boulder, Colorado 80302 Telephone: (303) 447-8760 Attorneys for Plaintiff PELE DEFENSE FUND f:Wedment~plg~f'otcol.bd/ CB1169591.4 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII PELE DEFENSE FUND, ) CIVIL NO. 89-089 (Hilo) (Declaratory Judgment/Injunction) Plaintiff, ) vs. ) FINDINGS OF FACT AND THE ESTATE OF JAMES CAMPBELL, ) CONCLUSIONS OF LAW; ORDER DECEASED; W. H. MCVAY AND ) P. R. CASSIDAY, in their fiduciary ) capacity as Trustees under the Will ) Trial Date: August 2,1994 and the Estate of James Campbell, ) Judge: Hon. Riki May Amano Defendants. ) tifere6y certify thot this is a full, true and coerecl copy oft riginal on fife in fhis office. , CbrY, Third Circuit Court. Stata oT ttawaY FINDINGS OF FACT AND CONCLUSIONS OF LAW This case came on for trial before the Court on August 1-5, 8, 11, and 12, 1994, the Honorable Riki May Amano presiding. Yuklin Aluli, Paul Nahoa Lucas, and Steven C. Moore appeazed on behalf of Plaintiff Pele Defense Fund. Michael W. Gibson and James K. Mee appeared on behalf of Defendant Trustees of the Estate of James Campbell, deceased, together with party representatives Edith MacKenzie and Rubellite Johnson. Pursuant to the First Amended Complaint for Declazatory and Injunctive Relief filed herein, the opinion. of the Supreme Court filed September 28, 1992 in Pele Defense Fund v. Paty, 73 Haw. 578 (1992), and the Judgment on Appeal filed by the Supreme Court on October 26, 1992, the Court has heard and considered the evidence presented, and being fully apprised of the premises, makes the following Findings of Fact and Conclusions of Law. These Findings of Fact and Conclusions of Law shall be construed as follows: (1) If it is later determined that a Finding of Fact should be properly deemed to be a Conclusion of Law, the Court so concludes on those legal issues. (2) If it is later determined that a Conclusion of Law should properly be deemed to be a Finding of Fact, the Court so finds on those`factual issues. (3) To the extent that any of the following Findings of Fact and Conclusions of Law include a mixed finding of fact and conclusion of law, each shall be given full effect. FINDINGS OF FACT 1. Plaintiff Pele Defense Fund (hereinafrer "PDF") is a non-profit corporation incorporated in 1987, whose purpose is to perpetuate Hawaiian religion and culture. 2 2. Defendant Estate of James Campbell, Deceased (hereinafter "Campbell Estate"), is a private trust operated for the benefit of individual beneficiaries. Defendant Trustees under the Will and of the Estate of James Campbell, deceased (collectively referred to hereinafter as "Campbell Estate"), were sued in their fiduciary capacities and not their individual capacities. 3. Portions of the land that aze the subject of this action aze the former Wao Kele ' O Puna ("WKOP") Natural Area Reserve and Puna Forest Reserve ("PFR'~, situated in the District of Puna, Island of Hawaii, which were exchanged in 1987 by the State of Hawaii for lands at Kahauale' a which were owned by Defendant Campbell Estate. 4. Defendant Campbell Estate currently holds record title to the land pursuant to Land Patent Grant No. 5-15,666, which land is described in Exhibit A attached hereto. 5. On September 28, 1992, the Hawaii Supreme Court issued its opinion in Pele Defense Fund v. Paty, 73 Haw. 578 (1992), reversing the lower court's dismissal of PDF's claim that Defendant Campbell Estate violated Article XII, § 7 of the Hawaii State Constitution, by preventing PDF's members from entering Campbell's undeveloped land for subsistence, cultural, and religious practices, and remanded that claim for a full trial on the merits. 6. On October 26, 1992 the Supreme Court entered its Judgment on Appeal, and expressly directed this Court that: The case is remanded for trial on the claim alleging that Defendants-Appellees THE ESTATE OF JAMES CAMPBELL, FRED E. TROTTER, W.H. McVAY, P.R CASSIDAY, HERBERT C. CORNiJELLE, TRUE GEOTHERMAL ENERGY CORP., TRUE GEOTHERMAL DRILLING CO., and MID- PACIFIC GEOTHERMAL, INC. violated article XII, § 7 by the continued denial of access into the undeveloped azeas of Wao Kele 'O Puna and other exchanged lands to native Hawaiian PDF members who seek access for customarily and traditionally exercised subsistence, cultural and religious practices. 3 RESERVATION OF RIGHTS 7. On Mazch 8, 1848, Kamehameha III conveyed to the Hawaiian government 38 ahupua'a and three ' ili in the Puna district, and retained two ahupua'a and one 'ili. 2 Rev.L.Haw. 2152-2176 (1925). The ahupua'a that the King conveyed to the government were: Aahalanui, Halepuaa, Halona, Hapaiki, Haukalua 1 and 2, Honolulu, Honomu, Kaikowowo, Kamaili, Kanekiki, Kaohe, Kapaahu, Kaualea, Kaukulau, Kealakomo and Kilauea, Keauohana, Keokea, Keonepoko, Ki, Kiapu, Kikala 1 and 2, Kupahua, three'ili in Kupahua, Lonokaeho, Makena, Makuu, Malama, Manawale, Oneloa, Opihikao, Panauiki, Pohoiki, Popoki, Poupou 1 and 2, and Waawaa. 2 Rev.L.Haw. 2156-2174 (1925). The ahupua'a in Puna retained by Kamehameha III (later known as Crown Lands) were Apua and Kaimu and the 'ili of Waiakolea. 2 Rev.L.Haw. 2152-2156 (1925). 8. On June 7, 1848 the Hawaiian legislature ratified the King's action, declaring that all of the aforementioned government and Crown lands, which included the ahupua'a, were to be set aside for the Hawaiian government "subject always to the rights of tenants". 2 Rev.L.Haw. 2156, 2174 (1925). 9. On February 27, 1987, the BLNR issued Land Patent No. 5-15,666, transferring the land to Campbell Estate in fee simple. 10. The Land Patent contains the following language: "excepting and reserving therefrom all existing trails within said Pazcel B..." and "excepting and reserving therefrom all existing trails within said Pazcel C." 11. On December 3, 1986, Campbell Estate entered into a sublease with True Mid- Pacific Geothermal, Inc. for the exploration and development of geothermal energy within the land. (Plaintiffs Trial Exhibit " 2"). Less than 20 acres of the approximately 27,800 acres were 4 developed, as defined in Exhibit B attached hereto, pursuant to the sublease. The remaining acres aze undeveloped. 12. The sublease expressly states that True Geothermal's lease is subject to "claims based on native rights, including roads and trails". (Plaintiffs Trial Exhibit " 2", pp. 9-10). 13. The sublease also states that both Campbell and True Geothermal shall not "unreasonably interfere with the rights of others herein set forth" in the lease. (Plaintiffs Trial Exhibit " 2", pp. 9-10). HISTORICAL LAND USE OF WKOP AND-PFR LANDS 14. The traditional place name for the former WKOP and PFR lands is unknown. (Tr. 8/11/94 (p.m.) at 44-46). The Hawaiian phrase "Wao Kele 'O Puna" used to designate the former Natural Area Reserve, is merely a descriptive term which refers to the rainbelt of Puna, i.e., an azea where clouds accumulate, being attracted by the forest. (Tr. 8/11/94 (p.m.) at 45) 15. Wao Kele 'O Puna may be an abbreviated form of Wao O ma'u O Kele O Puna, referring to Oma ~u, a diety who was part of the Pele clan, associated with a part of the rainforest. (Tr. 8/11/94 (p.m.) at 44-45). 16. Following the Mahele of 1848, the Hawaiian government received the bulk of lands in the Puna district. (Tr. 8/11/94 (p.m.) at 69), In 1911, these government forest lands were set aside for use as a Forest Reserve that came to be known as the Puna Forest Reserve. (Tr. 8/11/94 (p.m.) at 47). 17. PDF witnesses testified that these lands aze not contained within any actual ahupua'a. According to maps dating as eazly as 1850 on file at the state azchives, the former WKOP and PFR aze not located within an ahupua'a. (Tr. 8/11/94 (a.m.) at 76) 5 , ' 18. For instance, a Territorial Survey Map prepazed by Walter E. Wall, Surveyor in 1927, of the Puna Forest Reserve, Keauohana Forest Reserve, and Malama-ki Forest Reserve, Puna, Hawaii HTS Plat 814, illustrate the ahupua'a and 'ili, including the boundaries of the Puna Forest Reserve, awazded in the Puna District. (Defendant's Trial Exhibit "AA"). HISTORICAL USE OF WKOP AND PFR 19. Subsistence and cultural activities were traditionally exercised in former WKOP and PFR by individuals prior to 1892. 20. The former WKOP and PFR land was used by eazly Hawaiians for the planting of native cultigens, i.e., kukui, ginger, taro, ti leaf, awa, etc. (Tr. 8/5/94 (p.m.) at 48; Tr. 8/3/94 (p.m.) at 73-77) 21. There aze at least two known lazge lava tube systems in the Puna district which extend into the WKOP and PFR lands. (Tr. 8/5/94 (p.m.) at 43) The northern tube extends approximately three miles into the WKOP and PFR, and the middle tube extends at least 4.2 miles into the WKOP and PFR. (Tr. 8/5/94 (p.m.) at 43) Both systems contain azchaeological evidence of prehistoric and historic use of the tubes and surface lands, for hunting, gathering, wazfaze, and burial purposes. (Tr. 8/5/94 (p.m.) at 44-47, 50, 60) 22. There were mala'ai, or dryland gazden plots of land situated in the former WKOP lands in an azea called "Walaohia", which were used primarily by Hawaiian families residing in the Kalapana, some as faz back as the mid 19th century, for subsistence and cultural activities. (Tr. 8/2/94 (p.m.) at 35-37; Tr. 8/5/94 (a.m.) at 28; Tr. 8/8/94 at 15-16, 22). 23. Native Hawaiian members of PDF residing in the Puna District use the land for hunting and gathering, and other customary practices, all of which were in existence and practiced in the 19`~ century, through 1892. 6 24. Said members of PDF have been driven in part by the loss of suitable habitat in other areas, to hunt and gather on the subject lands. 25. Since acquiring title to the subject land, Campbell Estate has failed to recognize or acknowledge Plaintiff s members right to current and future usage, to which the Campbell Estate's land is subject, and have also failed to permit Plaintiff's members access to the land. 26. Due to Campbell Estate's failure, said members of PDF are no longer able to gain access to the land to gather herbs and other native plants, to hunt and to perform cultural practices. VALUES OF THE 'GHANA IN PUMA 27. The importance of the 'ohana, or extended family, to the Puna people, and their continuing dependence on subsistence hunting and cultural gathering activities on the former WKOP and PFR land, has persisted over time. 28. From the eazliest migration into the Puna azea (300-600 A.D.), and continuing through the second (600-1100 A.D.) and third (1100-1400 A.D.) expansion and migration periods, the 'ohana was the main social unit of organization in the maintenance and operation of the subsistence lifestyle. (Tr. 8/11/94 (a.m.) at 57-64) The ahupua'a concept or boundaries had not yet been established. (Tr. 8/11/94 (a.m.) at 57-64) Ahupua'a boundaries were not established in Hawaii or the District of Puna until the time of Liloa, circa. 1475 A.D. Thus, the division of Puna into ahupua'a has occurred within the last 300-500 yeazs. (Tr. 8/11/94 (a.m.) at 64) 29. From the time of Umialiloa, Liloa's son, in the 15th century, when the ahupua'a system was established, the 'ohana system was overlain or impressed with a more stratified, hierazchical system of chiefs and commoners. (Tr. 8/11/94 (a.m.) at 88) Accordingly, there were 7 two sets of values operating within the Hawaiian social system: 1) those values associated with the chiefs and konohiki, and 2) those values of the 'ohana. (Tr. 8/11/94 (a.m.) at 88-89) 30. Under this two tiered system, the commoners lived on and took caze of the land, and provided food and labor, and sometimes military service, for the ali'i. (Tr. 8/3/94 (p.m.) at 7-8; Tr. 8/12/94 (a.m.) at 44-52) 31. The values that the 'ohana of Puna have maintained and exercised in their subsistence practices from 300 A.D. to the present maintain and sustain the 'ohana, by feeding family members and allowing the cooperative relations essential to maintain the family network. (Tr. 8/11/94 (a.m.) at 83-84) 32. When Kamehameha I established control through a central government in 1795, he continued the practice of assigning lands in the Puna district to chiefs who were not from the Puna district, but who were his allies. (Tr. 8/11/94 (a.m.) at 65-66; Tr. 8/12/94 (a.m.) at 7) 33. Despite these changes the 'ohana system was still pazamount in the Puna district, persisting despite this hierarchy, that is, traditional values associated with hunting, gathering, and fishing continued to be handed down and practiced within the 'ohana from one generation to the next. (Tr. 8/11/94 (a.m.) at 89) AHUPUA'A BOUNDARIES 34. Unlike other azeas in Hawaii, Hawaiians historically crossed ahupua'a boundaries in the Puna district. Testimony before the Boundary Commission establishes that individuals crossed regularly between the ahupua'a of Kapoho and Keahialaka, which were two lands owned by the same family, without regazd to the interior boundary. (Tr. 8/11/94 (p.m.) at 74-76) In addition, Hawaiians would cross to the kola plains in the ahupua'a of Kalama. (Tr. 8/11/94 (p.m.) at 74-76) (Compaze, Tr. 8/12/94 (a.m.) at 18). 8 35. It was customary for persons using the trails to gather along the trails, as well as temporarily reside overnight. (Tr. 8/11/94 (p.m.) at 78-80) 36. The lava tube system, used prehistorically and historically by Hawaiiaz~s, could have crossed several ahupua'a boundaries. (Tr. 8/5/94 (p.m.) at 62) 37. Members of PDF and their families hunt and gather in VJKOP and PFR for subsistence and cultural purposes. 38. Ahupua'a boundaries are not well known by PDF members and other individuals conducting subsistence and cultural activities in Puna; and aze not perceived as dividing lines over which they will not cross. (Tr. 8/11/94 (a.m.) at 77-78; Tr. 8/2/94 at 61-62; Tr. 8/4/94 (p.m.) at 17-18) 39. The evidence at trial established that in accord with Hawaiian custom, a person seeking access to gather mauka, or upland, would ask permission to cross land only if that person was met in the course of their activities. Failure to ask for permission, however, did not preclude one from engaging in a subsistence and cultural activity, because the land "owner" would eventually be informed, either by the person exercising that activity or by a third party, usually by a person familiaz or knowledgeable in that azea. (Tr. 8/3/94 (p.m.) at 24-26; 34; Tr. 8/4/94 (p.m.) at 26) 40. Traditionally, rather than ask for permission, one would kahea or heahea, i.e., announce your presence and intention by rattling keys, making loud noises, or leaving ceremonial markers, such as rocks wrapped in ti leaves, to let residents know that you were visiting the azea. (Tr. 8/3/94 (a.m.) at 35-38) The custom and practice of kahea or heahea differed from place to place. (Tr. 8/3/94 (a.m.) at 37) 9 41. The hunting and gathering patterns in the Puna district aze unique because they aze influenced, to a lazge extent, by an active volcano, Kilauea. It can be reasonably inferred that volcanic eruptions in the Puna azea force hunters and gatherers to change areas to find plants and animals for subsistence purposes. 42. For example, PDF members Hauanio and Peleiholani were forced to move from their original family homes and ahupua'a due to lava flows, but continue to hunt and gather in azeas to which they were introduced prior to relocation. (Tt. 8/8/94 (a.m.) at 13-14, 18; Tr. 8/5/94 (a.m.) at 14, 41-45) 43. Hawaiians aze "multi-local", i.e., much given to changes in residency from district to district and even island to island. (Tr. 8/12/94 (a.m.) at 42-43) With these changes in residence, one is introduced to new areas of subsistence practice. 44. Nonetheless, familiarity and preference for the gathering and hunting azeas would not end with a change of residence. The traditional values of not overusing and sharing would protect the resource. 45. For example, PDF members Kobayashi and Auwae moved from their ahupua'a after they married, but continue to hunt and gather in azeas to which they were introduced prior to relocation. (Tr. 8/5/94 (a.m.) at 62-65; Tr. 8/4/94 (a.m.) at 40-42, 48-50, 57-63) 46. Further, ties of family and friendship in Puna and the requirements of survival would allow non-ahupua ~a residents to continue their subsistence and cultural activities in a given azea. CUSTOMARILY AND TRADITIONALLY EXERCISED PRACTICE 47. A "customary and traditional" activity is defined as consisting of those activities that have been practiced in one generation and passed to another generation within the values 10 practiced by that culture. (Tr. 8/11/94 (a.m.) at 39) A practice is "customarily and traditionally exercised" when a specific set of values aze passed down to the next generation in the conduct of their subsistence and cultural activities. A subsistence living requires a person to adhere to cultural practices, norms and values in order to maintain order, harmony, balance, and respect for the resources and deities associated with those resources. 48. The primary values, or norms, associated with the traditional native Hawaiian subsistence lifestyle include taking caze of and not over-using or abusing the resource, utilizing only certain resources of a certain level of maturity or age, sharing resources with the 'ohana, respecting others' azeas, and others. (Tr. 8/11/94 (a.m.) at 41-42, 90, 96; Tr. 8/2/94 (p.m.) at 62; Tr. 8/5/94 (a.m.) at 64; Tr. 8/8/94 (a.m.) at 31) In this case, these values have been passed down by the Puna Hawaiians from one generation to another. Id. 49. PDF members and other individuals continue to hunt and gather in forested azeas in Puna based on where they were taught to go and gather from their 'ohana, or family, usually a kupuna, or elder. (Tr. 8/11/94 (a.m.) at 78, 82-83). 50. Although there may be changes in the items that they gather, as well as how they gather it, the values and the uses for which they aze made are consistent with the values and uses extant from 300-1400 A.D. in Puna. ('I'r. 8/11/94 (a.m.) at 83). 51. Dr. McGregor was lead author and investigator of the Native Hawaiian Ethnographic Studv on behalf of the U.S. Department of Energy. 52. The Native Hawaiian Ethnographic Studv documented contemporary Hawaiian subsistence and cultural practices in Puna. The study included semi-structured interviews with 79 "key informants", individuals identified by the State Historic Preservation Office as tradition bearers in the Puna community having knowledge of Hawaiian cultural and subsistence practices 11 in Puna. Dr. McGregor, in her testimony, relied upon a map entitled "Native Hawaiian Ethnographic Survey". This map consists of color coded identification of ocean gathering, fishing, hunting, plant gathering, and trails and was created by the location of such azeas on a USGS map by the 79 key informants during the interviews. (Plaintiffs Trial Exhibit "9"). 53. In this case, the hunting and gathering practices carried on today by members of PDF and other individuals, are "traditional and customazy", i.e., these subsistence activities are conducted with the same values as utilized by Hawaiians in the Puna District for generations. 54. The PDF members who testified consisted of native Hawaiian residents of the Puna district who hunt and gather in the former WKOP and PFR (key informant witnesses Clarence Hauanio, Elia Kaho'okaulana, Pi ilani Ka'awaloa, and Wesley Kobayashi); anon- Hawaiian resident of the Puna district married to a Hawaiian who hunts and gathers in the former WKOP and PFR (key informant witness Al Jazdine); a native Hawaiian non-resident of the Puna district who exercises a customary and traditional subsistence and cultural activity in the former WKOP and PFR (key informant witness Henry "Papa" Auwae). 55. All PDF members who testified identified their place of residence, their route to the land, point of entry, and route within the land. (Plaintiffs Exhibit "1"; Tr. 8/3/94 (p.m.) at 58- 77; Tr.8/4/94 (a.m.) at 72-76; Tr.8/5/94 (a.m.) at 22-29, 65, 72-80; Tr.8/8/94 at 22-26). 56. Other PDF members were named as Plaintiffs lay witnesses for hunting and gathering activities in WKOP and PFR. For purposes of avoiding cumulative testimony, the testimony o£ Emily Iwalani Naeole, Keala Kaipo, Gordon Hoohuli, John Kekahuna, James Costa-Ayers, Phillip Keli'iho'omalu, Albert Kaho'okaulana, Beverly Pavao, Keoni Kalawe, Robert Keliihoomalu, Darrin Kamanu, Edwazd Kamanu, and Elson Kalawe was accepted through PDF's offer of proof (Tr. 8/8/94 (a.m.) at 80-81). 12 57. There aze approximately six hunters in the Kalapana azea, who supply meat to each of their families. (Tr. 8/5/94 (a.m.) at 21) There aze approximately 50 to 60 individuals in each hunter's family. (Tr. 8/5/94 (a.m.) at 22) 58. PDF member Clazence Hulihe'e Hauanio is a 42 yeaz old pure native Hawaiian who was bom and raised in Kepauole-mauka, Kalapana. (Tr. 8/5/94 (a.m.) at 13-14). 59. PDF member Elia Kaho' okaulana is a 34-yeaz old 100% Hawaiian who was born and raised in Kalapana at an area known as Mokuhulu. (Tr. 8/2/94 (p.m.) at 28). Kaho'okaulana presently resides in Mokuhulu, in the house that he was raised in, built by his grandfather, Elia Herman Kaho' okaulana, in the 1940's. (Tr. 8/2/94 (p.m.) at 27-28). 60. PDF member Wesley Kobayashi is a 35-yeaz old native Hawaiian of no less than 50% Hawaiian blood. (Tr. 8/5/94 (a.m.) at 61. 61. PDF member Al Jardine is a 67-yeaz old non-Hawaiian married to a pure Hawaiian woman, whose family is from Kona. (Tr.8/3/94 (p.m) at 39). 62. Their fathers trained these Hawaiians when they were young children to hunt using a knife and hunting dogs. (Tr. 8/5/94 (a.m.) at 18); (Tr. 8/2/94 (p.m.) at 32); (Tr. 8/5/94 (a.m.) at 64, 69); (Tr.8/3/94 (p.m) at 42,105). 63. Jazdine has eight children, 23 grandchildren and nine great grandchildren. (Tr.8/3/94 (p.m) at 39-40). He has taught his sons and grandchildren to hunt. (Tr.8/3/94 (p.m) at 52). 64. Kobayashi is leaching his son to hunt. (Tr. 8/5/94 (a.m.) at 71). 65. Hauanio would hunt and gather with his father in an azea ranging from Kepauole- mauka to Kiula. (Tr. 8/5/94 (a.m.) at 18). 13 66. Kaho' okaulana would hunt and gather with his father and two brothers primarily in an azea called Kiula. (T'r. 8/2/94 (p.m.) at 31). 67. Kaho' okaulana's father would hunt in an azea outside of his home because there was no game in his azea. (Tr. 8/2/94 (p.m.) at 60). 68. Kobayashi would hunt and gather with his father in areas in the Puna district behind the Pahoa School, called "Big Mountain", and in an azea behind the Black Sands subdivision in Kalapana. (Tr. 8/5/94 (a.m.) at 65). 69. Hauanio presently hunts approximately twice every month in WKOP, taking between 80-2501bs. of meat out of the forest. (Tr. 8/5/94 (a.m.) at 19-20). 70. Jazdine first started to hunt in the Puna district after World War II, in 1947 or 48. ('I'r. 8/3/94 (p.m) at 44). 71. Kaho'okaulana presently hunts approximately once a week in WKOP, taking one pig out of the forest. (Tr. 8/2/94 (p.m.) at 46, 52, 70). 72. Kobayashi used to hunt primazily on weekends in WKOP with his father and friends from school, taking about 50-601bs. of meat out of the forest. (Tr. 8/5/94 (a.m.) at 67, 70-71). 73. Jazdine, his uncle, father, and Hawaiian friends would hunt in WKOP and PFR between once and twice a month, sometimes sleeping overnight and taking their kill, approximately 2001bs. of game, out the next day. (Tr.8/3/94 (p.m) at 46, 52). 74. Kaho'okaulana's older brother also hunts and shares his meat with his family. (Tr. 8/2/94 (p.m.) at 76). 75. Kaho'okaulana used to hunt with his matema] grandfather Samuel Ka'awaloa. (Tr. 8/2/94 (p.m.) at 33-34). 14 76. At the time of trial, Samuel Ka'awaloa was 88 or 89 yeazs old. (Tr. 8/2/94 (p.m.) at 34). 77. Hauanio, Kaho' okaulana, and Jardine hunt with a knives and hunting dogs, but now also carry guns to hunt. (Tr. 8/5/94 (a.m.) at 19-20); (Tr. 8/2/94 (p.m.) at 70); (Tr.8/3/94 (p.m) at 49). 78. Hauanio salts or smokes the meat he shazes with family, including his brothers and sisters, uncles and aunt. (Tr. 8/5/94 (a.m.) at 20-21). Kaho'okaulana also shazes the meat he gathers with family, primarily his six brothers and six sisters some of whom live on O ~ahu. (Tr. 8/2/94 (p.m.) at 29, 75-76). Kobayashi smokes or makes.sausage and shares the meat he gathers with his family, which consists of more than 50 members.(Tr. 8/5/94 (a.m.) at 71). Jardine salts or smokes the meat and makes sausage he shazes and gives to family, and those who were unable to hunt. (Tr.B/3/94 (p.m) at 47, 51). 79. The native Hawaiian hunters also simultaneously gather medicinal plants such as mamaki, ko'oko'olau, and liko, among others for their families and animals in WKOP. (Tr. 8/2/94 (p.m.) at 69-70, 77). 80. Kobayashi also picks maile for family members' wedding.(Tr. 8/5/94 (a.m.) at 70). 81. Jardine also gathers kukui nuts and Hawaiian ginger in the WKOP and PFR for medicinal use by his Hawaiian wife and others. (Tr.8/3/94 (p.m) at 73-77). 82. Hawaiians might have lived and had plantings in mala'ai, upland gazdens located within the waokanaka, or forest area. (Tr. 8/3/94 (a.m.) at 58-59) 83. It was also customary that these mala'ai were never disturbed by persons visiting the azea. However, if strangers needed these products for their survival, custom dictated that 15 they were free to use it, provided that they eventually inform the owner of its use. (Tr. 8/3/94 (a.m.) at 58-60). 84. At least once a week, Kaho' okaulana would accompany Sam Ka' awaloa from his grandfather's home in Kapa'ahu, Puna, on horseback to their family garden plot of land, or mala'ai, of approximately one acre upland of Kapaahu, in an area called Walachia. (Tr. 8/2/94 (p.m.) at 35-38). 85. Walachia is within the WKOP forest. (Tr. 8/2/94 (p.m.) at 54). 86. The mala'ai was first farmed by Samuel Ka'awaloa's great-grandfathers. (I'r. 8/2/94 (p.m.) at 40). 87. Other families, such as Konanui, Lum Ho, and Kauhi also had mala'ai in Walachia. (Tr. 8/2/94 (p.m.) at 40-41). 88. Kaho'okaulana and his grandfather would stay at Walachia for three days and two nights, and, before they came back home, would hunt for pigs, goats and cows, taking only enough to feed his family. (Tr. 8/2/94 (p.m.) at 38-40). 89. Kaho' okaulana and his grandfather would pull weeds and care for plots of taro, sweet potato, ti leaves, banana trees and awa roots, that his grandfather planted. (Tr. 8/2/94 (p.m.) at 36). 90. Kaho'okaulana also gathered maile below the family mala'ai. (Tr. 8/2/94 (p.m.) at 68). 91. At Walachia there was a hale kuke, a small house, where they would obtain water from runoff. (Tr. 8/2/94 (p.m.) at 37-38). 92. Walachia was partly destroyed in the lava flow of 1977; it was later completely destroyed by the lava flow of 1980. (Tr. 8/2/94 (p.m.) at 39, 52). 16 93. There is an azea in the Puna uplands area called Walaohia, a homestead which consists of several mala'ai used by the Konanui, Kauhi, and Waipa families from Puna. (Tr. 8/8/94 at 15-16, 22; Tr.8/2/94 (p.m.) at 36-41). 94. PDF member Pi'ilani Gwendolyn Ka'awaloa was 29 yeazs old at the time of trial, a native Hawaiian of no less than 50% Hawaiian blood who was born and raised at Kupahua in the district of Puna. (Tr. 8/8/94 at 8). 95. Ka' awaloa has been trained in the Hawaiian arts of lauhala weaving, mahi'ai farming, and la'au lapa'au healing, which Ka'awaloa learned from her grandmother, who in turn learned it from her grandmother. (Tr. 8/8/94 at 15-16, 22). 96. Ka' awaloa's grandmother also showed her where in Puna to gather items for medicine. (Tr. 8/8/94 at 22). 97. Jazdine has observed plantings of ti leaves, tazo, and awa root in WKOP and PFR. (Tr.8/3/94 (p.m) at 73-77). 98. PDF member Henry Auwae testified as a witness for the PDF and was found by this Court to be qualified as an expert in the area of kahuna la'au lapa'au, or traditional medicinal healing. (Tr. 8/4/94 (a.m.) at 51, 56). 99. Auwae was born in 1910 at Puako, Kawaihae, Hawaii. (Tr.B/4/94 (a.m.) at 8). 100. Auwae has sixteen children and 247 grandchildren, great grandchildren, and great great grandchildren.(Tr.8/4/94 (a.m.) at 7). 101. Auwae was trained by his great great grandmother Kapua Pai, and grandmother Kanalu Pai, in the early 1900s. (Tr. 8/4/94 (a.m.) at 8-9) Kapua Pai was born in 1810, and died at the age of 114, when Auwae was 14 yeazs old. (Tr. 814/94 (a.m.) at 8-9) Kapua Pai was trained by her great great grandmother. (Tr. 8/4/94 (a.m.) at 28). 17 102. Auwae would accompany his great great grandmother on medicine gathering expeditions to the forest uplands of Kawaihae-uka and Kahua. (Tr. 8/4/94 (a.m.) at 15) Auwae would travel with his great great grandmother from Kawaihae as faz as Waimanu valley to gather medicinal herbs. (Tr. 8/4/94 (a.m.) at 27) Auwae would also gather pure water from Keanahanulunulu, acave between Pu'ulapalapa, Pu'u Lapakahi, and Pu'uahi in order to mix and prepaze medicine. (Tr. 8/4/94 (a.m.) at 18). 103. Auwae and his great great grandmother did not ask pemvssion from the landowner in 1917 to gather in Waimanu, nor to obtain water at Pu'ulapalapa in 1918. (Tr.8/4/94 (a.m.) at 24-25, 28). 104. Auwae moved to Puna in 1929 and lived there for seven years, until 1937 when he and his family moved to Hilo and eventually Keaukaha. (Tr.8/4/94 (a.m.) at 39). 105. During his yeazs of residence in Puna, Auwae familiarized himself with azeas of the former PFR where potent medicine, such as the ' awa kolo, could be picked. He also hunted in that azea. Upon moving to Keaukaha, he continued to gather for 52 years in the Campbell land. (Tr. 8/4/94 (a.m.) at 40-42, 48-50, 57-63) 106. Auwae continues to gather medicinal herbs well beyond his present district and ahupua'a of residence. 107. Auwae determines the location for gathering on where he finds the most efficacious medicine, not necessazily by ahupua'a boundaries. (Tr. 8/4/94 (a.m.) at 57-63, 65-68). HAWAIIAN PRACTICES NOT RACE-BASED 108. The Court fords that the Hawaiian culture is inclusive, not exclusive, i.e., gathering was not limited to persons of Hawaiian ancestry. (Tr. 8/3/94 (a.m.) at 43-44; Tr. 8/11/94 (a.m.) at 74). 18 r 109. The ' ohana concept is multi-generational; individuals who married into or were adopted into a family were considered part of the family, and were expected to participate in subsistence and cultural activities, such as gathering. (Tr. 8/3/94 (a.m.) at 47-48; Tr. 8/8/94 at 39; Tr. 8/11/94 (a.m.) at 61-62, 74). 110. The evidence at trial established that in Puna, family and friends were expected to participate with PDF members in subsistence and cultural activities. (Tr. 8/8/94 (a.m.) at 32). 111. PDF member Henry Auwae testified that neither in his caze of patients nor in his training of students was race a criteria. (Tr. 8/4/94 (a.m.) at 68-71). 112. PDF members Clazence Hauanio and Elia Kaho'okauluna aze married to non- Hawaiian women. Food is shazed with family, including non-Hawaiian family. 113. PDF member AI Jardine is a Caucasian man married to afull-blooded Hawaiian from Kona. His 8 children, 23 grandchildren and 9 great grandchildren aze thus Hawaiian. He observes all of the traditional values associated with subsistence hunting and gathering. HAWAIIAN PRACTICES SELF-REGULATING 114. The customs and practices of native Hawaiian activities in the Puna area aze, to a lazge extent, self-regulating. (Tr. 8/11/94 (a.m.) at 96). 115. Custom requires that with the exercise of a right to hunt and gather comes the responsibility of managing the resource. (Tr. 8/3/94 (a.m.) at 53). 116. The custom and practice of hunting and gathering for Hawaiian subsistence and cultural purposes requires that those individuals who choose to engage in such activity adhere to certain nouns. For example, these norms included: (a) not abusing resources but malama ka 'aina, i.e., (b) to take care of the resource, (c) to aloha, i.e., shaze the resource with the family, 19 and (d) respect each individual/families gathering and hunting azea. (Tr. 8/3/94 (a.m.) at 31-33, 34, 45-47, 53-54). 117. If a person failed to practice malama, there were several self-imposed measures which served as punishment, for example, self-punishment, or your family fuming against you by refusing to take caze of or look out for you. (Tr. 8/3/94 (p.m.) at 29). 1 18. These norms aze more often practiced by persons who aze from the rural country areas of neighbor islands. (Tr. 8/3/94 (a.m.) at 49-50). 119. Regulations such as requiring individuals to enroll in gun safety classes, or sign pemussion forms to enter property, is not Hawaiian custom and allows these individuals to be relieved of their attendant responsibility to self regulate. (Tr. 8/3/94 (a.m.) at 54-57). INTERFERENCE WITH SUBSISTENCE AND CULTURAL ACTIVITIES 120. Campbell Estate's Geothermal development of the former WKOP and PFR lands interferes with the subsistence and cultural activities of Puna hunters and gatherers. Game has been chased away, plants aze degraded or destroyed, and survival is affected because Puna families depend upon meat, plants and other resources. (Tr. 8/4/94 (p.m.) at 41-42; Tr. 8/11/94 (a.m.) at 95). 121. PDF Hunters and gatherers do not make a distinction between developed and undeveloped lands when they hunt and gather in WKOP and PFR. (Tr. 8/11/94 (a.m.) at 81-83). 122. Individuals conducting subsistence and cultural activities in WKOP and PFR often require access across "developed" areas, i.e., roads leading to and from geothermal drilling sites, to reach azeas within which to carry out the activities. 123. PDF member Auwae does not use a "developed vs. undeveloped" criteria in selecting the areas where he gathers, his consideration is whether the plants he gathers for 20 medicine have become "polluted" and thus lost some or all of their power because of development in an area. 124. PDF members were tamed away, or feazed returning to WKOP and PFR lands due to the actions of Campbell Estate and/or their former lessee True Geothermal. 125. For example, PDF member Auwae testified that he was denied access in 1989 from going into WKOP to gather medicinal plants for la'au lapa'au, even after he informed them of the purpose for his visit. (Tr. 8/4/94 (a.m.) at 37-38, 42-46). 126. After that incident, Auwae was embarrassed and has not returned to WKOP since 1989. (Tr. 8/4/94 (a.m.) at 42-46). 127. PDF member Wesley Kobayashi testified that he was not allowed onto Campbell Estate's land to retrieve a lost hunting dog. (Tr. 8/5/94 (a.m.) at 80-81, 84). 128. Kobayashi has never returned to that area to hunt since. (Tr. 8/5/94 (a.m.) at 84). 129. PDF member Pi'ilani Ka'awaloa testified that she was stopped from gathering pili grass near the road to True Geothermal's gate. (Tr. 8/8/94 (a.m.) at 48). 130. Ka' awaloa has never been notified that she could gather in the undeveloped azeas of WKOP and PFR. (Tr. 8/8/94 (a.m.) at 49). 131. Ka' awaloa testified that she would not return to that area for feaz of being arrested. (Tr. 8/8/94 (a.m.) at 49). 132. Campbell Estate does not permit access by unauthorized individuals to the drill site, road and other improvements situate on its ]ands. (Tr. 8/5/94 (a.m.) at 95-96, 108). 133. Campbell Estate has no policy regazding access to the undeveloped azeas of their land. (Tr. 8/5/94 (a.m.) at 96). 21 . HARM 134. Campbell Estate witness William Dement testified that True Geothermal is currently not actively drilling in WKOP and PFR. (Tr. 8/5/94 (a.m.) at 97-98). 135. Campbell Estate did not present evidence to establish any actual harm as a result of allowing PDF members to conduct subsistence and cultural activities on the undeveloped portions of the former WKOP and PFR lands. CONCLUSIONS OF LAW 1. This Court has subject matter jurisdiction over this matter and the parties in this action. 2. In its conveyance of the WKOP and PFR lands to the Campbell Estate in 1987, the State has excepted and reserved all of the existing trails in pazcels B and C, as noted in Exhibit A attached hereto. 3. The customary rights of individuals to exercise subsistence and cultural activities in the WKOP and PFR lands have not been extinguished. Public Access Shoreline Hawaii, 79 Haw. 425, 442 (1995). 4. Article XII, § 7 of the Hawaii State Constitution states that: The State reaffirms and shall protect all rights, customarily and traditionally exercised for subsistence, cultural and religious purposes and possessed by ahupua'a tenants who aze descendants of native Hawaiians who inhabited the Hawaiian Islands prior to 1778, subject to the right of the State to regulate such rights. 5. Since the protection of all customarily and traditionally exercised practices of native Hawaiians is now a matter of constitutional importance, this Court is obligated to give full force and effect to the protection of native rights. Pele Defense Fund v. Paty, 73 Haw. 578, 617- 620 (1992). 22 6. As stated in the Standing Committee's Report, quoted by our Supreme Court in Pele Defense Fund, 73 Haw. at 620: ...your Committee intended to provide a provision in the Constitution to encompass all rights of native Hawaiians, such as access and gathering. Your Committee did not intend to have the section narrowly construed or ienored by the Court.(Emphasis in the original). 7. PDF members aze exercising customary and traditional cultural and subsistence rights possessed by ahupua'a tenants who are descendants of native Hawaiians inhabiting the Hawaiian islands prior to 1778. 8. Hunting and gathering are practices entitled to protection under Article XII, § 7. The Standing Committee report states that: Your Committee found that besides fishing rights, other rights for sustenance, cultural and religious purposes exist. Huntine, gatherin¢, access and water rights, while not provided for in the State Constitution were nevertheless an inteeral Hart of the ancient Hawaiian civilization and are retained by its descendants. Stand. Cornm. Rep. No. 57, reprinted in 1 PROCEEDINGS OF THE CONSTITUTIONAL CONVENTION OF HAWAII OF 1978 at 639-640 (Emphasis supplied). 9. Based on the undisputed testimony at trial, the customarily exercised activities that PDF members seek to exercise aze hunting and gathering for subsistence and cultural purposes. 10. The plain language of Article XII, § 7 states that "...all rights, customarily and traditionally exercised..." will be protected. 11. From the operative word "exercise" it is cleaz that the framers of Article XII, § 7 sought to prevent a~ interference with the exercise of a traditional and customary practice. 12. These activities aze protected under Article XII, § 7. 23 13. In Pele Defense Fund, the Supreme Court recognized that § 7-1 "contains two types of rights: 'gathering rights which aze specifically limited and enumerated, and rights to access...which are frazned in general terms."' Pele Defense Fund, 73 Haw. at 617 (quoting Kalipi, 66 Haw. at 5). 14. H.R.S. § 1-1 represents the codification of the doctrine of custom in Hawaii. Public Access Shoreline Hawaii, 79 Haw. at 447. 15. H.R.S. § 1-1 provides as follows: The common law of England, as ascertained by English and American decisions, is declazed to be the common law of the State of Hawaii in all cases, except as otherwise expressly provided by the Constitution or laws of the United States, or by laws of the State, or fixed by Hawaiian judicial precedent, or established by Hawaiian usage; provided that no person shall be subject to criminal proceedings except as provided by the written laws of the United States or of the State. (Emphasis supplied). 16. The Hawaiian Usage exception under § 1-1 is akin to the English doctrine of custom whereby practices and privileges unique to particulaz districts continue to apply to the residents of those districts even though in contravention of the common law. Public Access Shoreline Hawaii, 79 Haw. at 440 (quoting Kalipi, 66 Haw. at 10-11). 17. Not all of the elements of custom embodied in the English common law have been incorporated into § 1-1. Thus, Hawaiian custom need not meet all elements of the En lg ish common law definition of custom. Public Access Shoreline Hawaii, 79 Haw. at 447. 18. As the Court held in Kalipi: [not] all [of] the requisite elements of the doctrine of custom were necessazily incorporated in §1-1. Rather, we believe that the retention of a Hawaiian tradition should in each case be determined by balancing the respective interests and harm...(Emphasis supplied). 24 ' r 66 Haw. at 18. 19. In the application of custom in Hawaii, the Hawaiian usage must have been established in practice prior to November 25, 1892, the date of passage of § 1-1's predecessor. Public Access Shoreline Hawaii, 79 Haw. at 447; the consistency of the custom is properly measured against other customs, not the spirit of the present laws. Public Access Shoreline Hawaii, 79 Haw. at 447, n. 39; the certainty of a custom is not subjectively determined, but objectively defined and applied. Public Access Shoreline Hawaii, 79 Haw. at 447, n.39; and the " reasonableness of a custom concerns the manner in which an otherwise valid customary right is exercised, i.e., even if an acceptable rationale cannot be assigned, the custom is still recognized as long as there is no "good legal reason" against it. Public Access Shoreline Hawaii, 79 Haw. at 447, n. 39. 20. The nature and scope of the rights reserved to hoa'aina [tenants] by custom and usage are to be defined according to the values, traditions and customs associated with a particulaz area as transmitted from onr Peneration to the next in the conduct of subsistence, cultural and religious activities. 21. As [the Court] stated in Kalini, "the precise nature and scope of the rights retained by § 1-1 [and Article XII, § 7]would, of course, depend upon the particulaz circumstances of each case." Pele Defense Fund, 73 Haw. at 619 (quoting from Kalipi, 66 Haw. at 12). 22. "Native Hawaiian rights protected by Article XII, § 7 may extend beyond the ahupua'a in which a native Hawaiian resides where such rights have been customarily and traditionally exercised in this manner." Pele Defense Fund, 73 Haw. at 620. 25 23. PDF members customary rights to hunt and gather in WKOP and PFR aze not limited by common law concepts associated with tenancy. Public Access Shoreline Hawaii, 79 Haw. at 448. 24. PDF members' hunting and gathering rights based on practiced customs raise different issues than land ownership. Public Access Shoreline Hawaii, 79 Haw. at 448. 25. PDF members, not claiming rights based on land ownership, but on the traditional access and gathering patterns practiced by native Hawaiians in the Puna region, Pele Defense Fund, 73 Haw. at 618-619, may conduct their activities outside the ahupua'a of their residence. 26. Based on the evidence presented, the hunting and gathering activities of PDF members were customary and traditional, i.e., that these activities were conducted in accordance with Hawaiian norms and values existing prior to November 25, 1892. 27. It has not been the practice of these individuals to limit the customarily and traditionally exercised subsistence and cultural activities to one's ahupua'a of residence. 28. Thus, PDF is not required to show that their members reside in an ahupua'a that abuts Campbell's land in order to exercise the rights protected under Article XII, § 7. Public Access Shoreline Hawaii, supra. 29. Persons seeking to assert claims based on Article XII, § 7 are not required to be individuals of 50% or more Hawaiian ancestry. Public Access Shoreline Hawaii, 79 Haw. 448- 449. 30. Article XII, § 7 protects the customarily and traditionally exercised activities possessed by "descendants of native Hawaiians who inhabited the islands prior to 1778" conducted in furtherance of subsistence and cultural purposes, irrespective of the race of the practitioner. Public Access Shoreline Hawaii, 79 Haw. at 449. 26 r' 31. Customary and traditional rights in Hawafii do not derive from the race of the practitioner, but from native Hawaiians pre-existing sovereignty which was never extinguished by Hawaiais inclusion within the territorial bounds of the United States. Public Access Shoreline Hawaii, 79 Haw. at 449. 32. It is undisputed that PDF members conduct traditionally and customarily exercised subsistence and cultural activities in WKOP and PFR. Accordingly, they have standing to assert rights based on Article XII, § 7, and H.R.S. 1-1 and 7-1. 33. While Article XII, § 7 applies to persons of Hawaiian ancestry, there is nothing to indicate that the right is limited to native Hawaiians. For example, the legislative history establishes that persons who aze married to Hawaiians and are engaged in traditional Hawaiian practices aze protected as well. For example, Delegate Frenchy Desoto stated that: These rights [under Article XII § 7] are rights. We have a different legal basis forrights--when I say "we" I mean the Hawaiian people. However, any right enjoyed by the native Hawaiian is also truly enjoyed by those who are non-Hawaiian. If you are fortunate enough to marry a Hawaiian, certainly you may follow her right down to the beach. Debates in the Committee of the Whole on Hawaiian Affairs, II PROCEEDINGS OF THE CONSTITUTIONAL CONVENTION of 197 at 436 (speech of Delegate Adelaide Desoto). 34. In addition, Delegate Calvin Ontai reaffirmed Delegate Desoto's remazks when he stated that: A great portion of the people today, by design for one reason or another, married into the Hawaiian race, and as Delegate Desoto said, they can follow them wherever those rights go. The children can follow, also. Debates in the Committee of the Whole on Hawaiian Affairs, II PROCEEDINGS OF THE CONSTITUTIONAL CONVENTION of 1978 at 437 (speech of Delegate Calvin Ontai). 27 35. In this case, PDF members include not only persons of Hawaiian ancestry, but non-Hawaiians related through marriage to Hawaiians. 36. Accordingly, non-Hawaiian PDF members married to Hawaiians have the same right to claim protection under Article XII, § 7, provided that the other requirements in this decision aze met. 37. The reasonable exercise of ancient Hawaiian usage is entitled to protection under Article XII, § 7, and H.R.S.§§ 7-1 and 1-1. PublicAccess Shoreline Hawali, 79 Haw. 442. 38. PDF members have proved, by a preponderance of the evidence, that they engage in traditional subsistence and cultural Hawaiian practices-access, hunting, and gathering, and that these activities have been conducted in the same manner in the Puna region since at least 1892. 39. Campbell Estate did not dispute that hunting and gathering is a traditional subsistence and cultural practice. 40. Campbell Estate did not dispute that PDF members are exercising these customary rights in a reasonable manner. 41. As persons exercising valid, constitutionally protected, customary rights in a reasonable manner, PDF members and other individuals aze entitled to protection against unreasonable interference by Campbell's agents, officers, and employees. 42. The legislative history of Article XII, § 7, states that: [Y]our Committee proposed this new section to provide the State with the power to protect these rights and to prevent any interference with the exercise of these rights. Stand. Comm. Rep. No. 57, reprinted in 1 PROCEEDINGS OF THE CONSTITUTIONAL CONVENTION OF HAWAII OF 1978 at 639-640 (Emphasis supplied). 28 43. Since acquiring these lands in 1987, Campbell Estate, its sublessees, representatives, and agents have stopped and discouraged PDF members and other individuals from customarily and traditionally exercising subsistence and cultural activities on its lands. 44. The State is obligated to protect the reasonable exercise of customarily and traditionally exercised subsistence and cultural practices to the extent feasible. However, the State can permit development that interferes with such rights in certain circumstances. Public Access Shoreline Hawaii, 79 Haw. at 450, n. 43. 45. Campbell's land aze not "fully developed" because True Geothermal had stopped exploration and development of geothermal energy on the Campbell property, which in any case was limited to less than 20 acres of the land. 46. Based on the specific circumstances of this case, Campbell Estate has not shown that PDF members activities have resulted, or will result in actual harm to their operations or property. 47. Based on the balancing standard used in § 1-1, the balance tips in favor of PDF and its members and against Campbell. 48. The regulatory powers of the State extend to all fee simple property in Hawaii, which allows the State not only to regulate the activities of native practitioner's, but landowners as well. Public Access Shoreline Hawaii, 79 Haw. at 450. 49. This analysis is consistent with Article XII, § Ts legislative history: Your Committee decided to add this new section to the Constitution in order to reaffirm, for descendants of native Hawaiians, rights customarily and traditionally exercised for subsistence, cultural and religious purposes. Awaze and concerned about past and present actions by private landowners, large corporations, ranches, lazee estates, hotels, and government entities which preclude native Hawaiians from following subsistence 29 practices traditionally used by their ancestors, your Committee proposed this new section to,Qrovide the State with the power to protect these rights and to prevent anv interference with the exercise of these rights. Stand. Comm. Rep. No. 57, reprinted in 1 PROCEEDINGS OF THE CONSTITUTIONAL CONVENTION OF HAWAII OF 1978 at 639-640 (emphasis added). 50. Thus, any scheme to regulate rights under Article XII, § 7 becomes a process by which both native rights and landowner actions are subject to reasonable protection and regulation. If landowner actions aze not subject to regulation, the expressed legislative purpose of preventing landowner interference with the exercise of native rights cannot be accomplished. 51. The conduct of PDF members and other individuals in the exercise of traditional subsistence and cultural activities has been self-regulating, which is part of the asserted custom. 52. It is reasonable to baz PDF's members access to the developed portion of the land, except as reasonable access to the undeveloped portion to exercise their Article XII, § 7 rights. CAMBELL ESTATE'S MOTION TO DISMISS 53. On August 10, 1994, Defendant Campbell Estate filed with the Court a motion to dismiss Plaintiffs complaint, to find Article XII, § 7 of the Hawaii Constitution unconstitutional, to deny Plaintiffs any relief or protections under Article XII, § 7, and to grant judgment as a matter of law in favor of Defendants. Plaintiffs filed a response thereto on August 18, 1994. 54. Defendants based their motion on several grounds: (a) violations of the First and Fourteenth Amendments to the United States Constitution, and Article I, § 4 of the Hawaii Constitution (establishment of religion); (b) violation of the equal protection clause of the Fourteenth Amendment of the United States Constitution and the equal protection clause of Article I, § 5 of the Hawaii Constitution; and (c) violation of the anti-nobility clause of Article I, 30 § 10 of the United States Constitution; and the privileges or immunities clause of Article I, § 20 of the Hawaii Constitution. 55. The Court finds that Campbell does not have the proper standing to raise the constitutional violations as a basis for the dismissal of this action. 56. The "alleged" injured class does not include Campbell itself, which can conduct whatever legal activities it wishes on its Wao Kele O Puna lands and thus has no need to seek protection of its rights under Art. XII, § 7. Campbell undoubtedly believes it is injured whenever any person exercises his customary and traditional rights on Campbell's Wao Kele O Puna lands without Campbell's consent, but the identity of those exercising such rights (Hawaiian vs. non- Hawaiian) is irrelevant to the alleged injury Campbell suffers. 57. Campbell has offered no evidence whatsoever to establish either that one or more of Campbell's beneficiaries aze seeking access for purposes consistent with Hawaiian traditional, cultural, or religious practices, have been denied access to other ahupua'a for such purposes, or that one or more of Campbell Estate's beneficiaries aze (or aze not) "part of the class of non- Hawaiians who aze not protected by § 7." 58. In sum, Campbell has presented no evidence of injury in any way related to the basis of its defense, that Art. XII, § 7, unconstitutionally discriminates between Hawaiians and non-Hawaiians. Campbell therefore lacks standing to litigate the issue of the alleged constitutional defect. See, Naliielua v. State of Hawaii, 795 F. Supp. 1009, 1012 (D. Haw. 1990), affd (mem.) on other grounds, 940 F.2d 1535 (9th Cir. 1991). 59. The doctrine of third party standing does not aid Campbell here. State v. O'Brien, 5 Haw. App. 491, 494 (guoting State v. Kaneakua, 61 Haw. 136, 142-43 (1970)), affd, 68 Haw. 31 38 (1985). There is no evidence that Campbell represents non-Hawaiians who wish to engage in traditional subsistence, cultural, or religious practices in Wao Kele 'O Puna. 60. Here, Campbell would be a singulazly inappropriate representative to litigate the interests ofnon-Hawaiians who may seek to undertake "customary and traditional" activities at Wao Kele O Puna for their interests, because Campbell's interests in this litigation aze adverse to all who would wish to enter Campbell's Wao Kele O'Puna lands without Campbell's consent, whether Hawaiians ornon-Hawaiians. Accordingly, this is not a case where "the relationship between the litigant and the third party [is] such that the former is fully, or very neazly, as effective a proponent of the right as the latter." Singleton v. Wu~ 428 U.S. 106, 115 (1976) (plurality opinion). 61. Accordingly, Campbell is not granted standing as a third party to azgue the unconstitutionality of Art. XII, § 7, as a surrogate for absent non-Hawaiians. 62. Alternatively, even if Campbell had standing to assert the equal protection defenses it alleges, the claims raised by the Pele Defense Fund under Article XII, § 7 do not amount to invidious discrimination under the equal protection provisions of the federal and state constitutions. 63. As discussed by the Supreme Court, Article XII, § 7 rights aze appurtenant rights and were unaffected by the land exchange in 1985. See, Pele Defense Fund v. Pary, 73 Haw. 578, 614 n.26 (1992). Accordingly, Campbell took title to the land in 1987 subject to the unique obligation to allow continued access by native Hawaiians for hunting and gathering in furtherance of the Hawaiian culture. ' 64. Furthermore, the rights that PDF members seek to exercise are based in Hawaiian usage and custom, having been in existence since time immemorial- before the Mahele of 1848, 32 the overthrow of 1893, and the Admission of Hawaii into the Union in 1959. Article XII, § 7 (as well as H.R.S. § 1-1) merely acknowledge the existence of these rights. Even though Article XII, § 7 is limited on its face to persons of Hawaiian ancestry, none of Hawaii's case law interpreting Hawaiian usage and custom has limited the exercise of that right to native Hawaiians. See, Kalipi v. Hawaiian Trust Co., 66 Haw. 1 (1982); State v. Zimring, 58 Haw. 106 (1977); In re Ashford, 50 Haw. 314 (1968); In re Estate ofNakuapa, 3 Haw. 342 (1872). Indeed, the Supreme Court in Public Access Shoreline Hawaii v. Hawaii County Planning Commission, 79 Haw. at 449, n. 41, left this issue unresolved. Accordingly, non-Hawaiians could have the same right as Hawaiians, irrespective of Article XII, § 7 if they could prove that their rights were based on custom and usage. 65. Thus, Article XII, § 7 does not violate equal protection because it does not attempt to reallocate or redistribute the rights, nor does it discriminate against non Hawaiians who can prove that they possess the same rights based on custom and usage. In any event, Campbell cannot claim that it is being discriminated against when it never proved that it possessed the right in the first place. Accordingly, there can be no equal protection violation. Similazly, there can be no violation of the "Anti- Nobility" clauses under the federal and state constitutions. 66. A judgment in favor of Plaintiff herein is not a taking of private property without compensation. This Court is bound by the pronouncement of the Hawaii Supreme Court on this subject in Public Access Shoreline Hawaii, 79 Haw. at 451-452. (Court's recognition of Hawaiian custom and usage "always"apart of the ]aw of this State does not constitute a judicial taking). 33 67. The Court, after consideration of the motion and response thereto, hereby denies the defendant's motion to dismiss. ORDER 68. An order permanently enjoining interference by Campbell Estate with the subsistence and cultural practices of traditional and customary practitioners on undeveloped WKOP land is consistent with the overall purpose of Article XII § 7, which is to protect these customary rights from interference from the landowner. 69. The Pele Defense Fund is entitled to entry of judgment in its favor against the Estate of James Campbell, including the Trustees under the Will and of the Estate of James Campbell, deceased, which shall include a permanent injunction against excluding the following persons from entering the undeveloped portions of the land and using the developed portion for reasonable access to the undeveloped portions, (the developed areas aze defined on Exhibit B attached hereto), to perform customarily and traditionally exercised subsistence and cultural practices: (a) Hawaiian subsistence or cultural practitioners who are descendants of the inhabitants of the Hawaiian Islands prior to 1778; (b) Person or persons accompanying Hawaiian subsistence or cultural practitioners described in (a); or (c) Persons related by blood, marriage or adoption to Hawaiian subsistence or cultural practitioners described in (a). 70. Notwithstanding that the judgment will include a "permanent" injunction, the Estate of James Campbell and successor owners of the land, aze not barred from and may seek to 34 develop the undeveloped portions of the land consistent with applicable law; and PDF may oppose further development by lawful means. ~AUG ~ ~ DATED: Hilo, Hawaii, 002. ,,.,.scup c ~ ~ Riki May Amano _ Judge of the above-entitled Co APPROVED AS TO FORM: ary G er obe E. d Attorneys for Defendant Trustees of Campbell Estate 35 „ ~ ~`~:~.;,~tic,~~y , i°~,. f 9~2 +18'9:x+ , ~ J ;~t l:~rY `,.k 'q"`~R'+i~i-,i.i' 1 :,`t :•..tSF',S.r:;Yr'.'r; tij '~`G i t. *J`S It .-4` ,•q'. ~ s~ aa r. i^.9" a.. ? . v~}'hti: ~ ~ lsTATL O? HAWAII l' ` i an. or aeenuwnsas arso aaenaL aarsvseo •w:w r•rnr ltactaDar ]7, 1113 t0ATI0f! Ol COFIIIOmrl LAIOIf OF ' MA~IO, LAD82, GDl0, i®1A, WHIN AfD RAINILI . 7AfG6 A Peea, bleed et Wall, Bwail Mfiminf at tM vat eotear e! thL pawl of Lod aed ee tM couch ~Dovndart of Lod Courc ApFliution 1037, tM eoordlaataa of acid . point of Dafinaief rala:Td to Cor•~tvant Sung TrSanNLtion fuelee ' "OLAA^ Mint 47.769.67 !ut fouW and f22l:61 tact Yaat, thane. rmnief h ulartM arasurad eloeMaa troa 14ua fouths- 1. 260• OS' 12^ 26,2ff.19 t•ac aley Land court Applieatim 303]{ ' 2. 7D3• 27' 70^ 13D6.57 !a•t aloof the raa•ledat o! Cowro•ane ' Lola{ 1. 713• 00' 1221.60 [nt glory tM raaulndar o! covarnarmt Leda I I 770• 16' 66f2.10 f••t aleaf CM taeafad•r o! Co•at>daot I Leda; . S. 262• 0T 1960.70 !a•t doef CM rmindir of Geaaetaaet Lasrda; 6. 290• 02' 621.60 I•at aloof tM raaainder of cavarernt Leda; 7. 71i• 2f' ~Sfl. BO teat aloof tM remainder of Gowrn.eet i Lando{ r 711• a7' 741.60 tut alon[ tM ramaind•r o! Oa~arraant Lando; i 9. 714• 12' 77510 fast aloof tM ta..lndar o[ covatnsent Lando; ~ 10. ]15• 71' 1823.3] f•at aloof tM remalodar o! Corerememe ~ Lando; 5~` u:i 11. 40• <3' 17.61 L•t aloof [M north aide o! 20.Fooc ~ .4 bad, %~i~iyy'~` EXHIBIT ~~Arr J~' .1 ~ -1- ''~f 1 I 1 11 Ef r{ii 1 ki 1 41~~,ti ~ ~ *v •y ~ r r 4 I ~ ~t,~="~' ~ ~~s R 1 5 3~ .160 ;'€"~ti; . y, ' 'k t' O.caaDer 1.7. lees 11.99 fuc .loop tM veK oida o[ 20-POei Y~,i .'"'~'~l ; 17. 60' ~ OS' lI" 25,D40.22 [oot ~rnd„hnol D of Dortrosent i r 1{..14D' 27' 16,IIO.IS foot oloot hrcol D of ovver~ent - la+WO eo cM Polnc of EeLlmioD .nd eoocalninD ARGI oP 9,012 ACDDS. SDIVR DIVISION DYPARII4NI OP ACCOUNIINO AND Ofl7~tAL SERVICES bTATC Oi WVAII D7. . ~ Ra 9 S. Nalawra 1aed ngor pc Coryl3ed fro. oSP 4777, CST 1D,677 and GoK. Song 4wrdo. n n m N 1 T~: y~ i, ~1 K, ~3:~ FF., ~ r.i ^Y; i ~ ; ~ I n M{ '+~~y'1o~ A,,++ .y Vri' ~IY~t ~-A~t~ .t t ''h ; ' ~v 4_ , ~Jis1~y7, ;S aKii gat f~+rTyL'?~~"~~y~: yam"., ~,1 ir~ t- ~ ~ tY. .rs ,!1w~U,;p'`2,~4.:'' 'kw4ri„+* xh',::~.•,• 19523 461 ] - STATt: O' HAWAII aV[V[r pfVlawu e[R. 0/ aCCOYSmMe aMa OW[aA~ a[RVIQa DacasDat 17, 19tS ay a. 20.716 ...wu.r po[Tlowa m covnuRO]rt LANDS or NA)90, RAOR2, RADt7, RZl~A. RATAAtO AND RANAlII rARea R rwa, LLd o! [atoll, Bawl! Mtianlat at tDa wat tgTnar o! ChL parcel o[ land and at as aotla on tM aoutD DowdarF eL land Coutc Appliutlen lOS7, tha eeordl- ' noun e( aald polo[ o! batlnnlnt nlartad [o CeLas~ant tong Ttfaajala- tioo Station "OUW" Dalai SS,)it.70 tact BoutD and 22,096.90 last Weat, chanea twnlnt by a:Lotht awaund clecMaa !tea Ttoa EoutDs- r 1. 2l0' OS' 12" 16,000.00 (ant aley load Court Applleatlae 1037: • 2. ]20' 27' 16,220.1! (oat oleo[ !areal A of Ge.atn~t l.aada; 2G0• OS' 12" 23,[10.22 (ant aiont rareal A et Covessagnt ~ Lada: i. 7]t' 1S' 7262.)6 font aloe{ cM teat ride o! tDa 20-Feet m bad: 1O S. 310' 2]' 19.26 fact afoot tM anat aide o! tDa 20.Foet Ibad; 6. ]i2• 71' 250.71 [eat aloof tM ueat aide of tha 20.root Road; 37)' 2)' 1~6.1T teat Qoy tM wat alda o! CM 20.reet Road: t. ]i)• 1L' 2)1.0i (oat cleat tM vent alda e! tM 20.Feet Read; 3 . 9. 7GB' 76' 1]1. t5 fact cloy eM vot aide e! tM 20.Foot ~ Road; ` 10. ]S7' 71' 127.10 Lett .long tha vast aide eC the 20-Foot Road; 71.10 Seet cloy the vent atda e[ tDa 20-Foe[ ~ Read: .'A"' . 1 '7 ` e~, , ~rt:ry il:. ~ ' M .y .i I r~ t < >a, v" ~r ~ y « ~ 195 , r .'lar. Y(' 4.... r 20 16 _ ~Mcenber 11, 1985 W.K~ 12. 7S{' S9' 212!.77 !cat dos{ eM vest side o! cbe 20-Yost bad; 17. 772• 7{' 221.69 teat slop{ the vest ride of the 2D-Foot + Road; 14, 715' 7T 287.92 feat den{ the vuc side of the 20-Fopt + bad; 1S. 25{' 17' - 9.45 feat slop{ the south side of the 20-Foot bad; 16. 752' 29' 6915.75 Seat ?lon{ Tartel C o! Govcrnmeat Lands; 17. 56' 27' 1460.60 feat alon{ Lots }R and I-A of Uppcr !;also Noecstesds; 1B. 79' 7{' 7534.10 feet along Lot }A of Upper 1'ulsn+ Hosx- «eada, Cranc 6571 co R, R.uakapl, Grapt 6770 to S. Raselaela and Grant 6]28 to D. Rsmelamela: 19. 57' 04' 10,520,90 feet slop{ Covesnmeet Lands; 20, 53' 71' 70" 9863.70 feat aloe{ Cranc 9275 to H. M. Holt, « al„ Tt~stee• under the Will ? and of the Eswte of 7amea ' Campbell, Deceased; • 21. 14B' 00' 4100.00 fast along R.l. 6070, L.C.Au. 8554-{, Ap. li to Villiu C, Lupa113o; 22. 116' 00' 8150.00 feet •lon{ R.P. {O]0, L. C.Av. 8559-R, ~ - A9. 14 to Vt111sm C. Lunalllo; 23. 126' S9' IS,105. 70 lent along R.p. {03D, L.C.A. BS59-R, ~ Ap. 14 to V1311u C. Luaalllo, ce c the point of be{S~1n{ sad eontain- N ie{ an AREA OF 16,647.!91 ACRES. E:ceptle{ and reservin{ therefrom all existio{ iralls vlehlm the about-dcserlDad Parcal R. ' SURVEY DIVISION ~??~~~tvr~.~~'.. @~ DEPAAihH.771' OF ACCOUIf7INC AND GENERAL SERVICES 'v-^i9'- a STATE OF HAUAII ~~"a^~'::+.' ~f a. a ( a.~ ~ R~ •Rsymon S. Nslumuts ~ t ~;~t t? ~ Lsnd urveyot ~ . ~ ~ T. 3 > , pt : Compiled Eros CSF 1{,667 ~ ~ "T" and ocher Covt., Survey :F ',F ~i ry Records. A 1 - ~ ' iJR t'.~. ~r~.+~.J: f+ t'~'1 :i~~ .a.k~'::~~rtt 6j~ j.~',a?`. r 5. x. ~ . .:rt ~ < - 19523 963 - r. , - STAT! 0I HAWAII wwrsr omsaw 20.]17 Dl/T. n1 ACCOVamMOYMD OaN[aAL aa~aeaa D.ceebar 13, 19eS att. M. „a,OW W p0ATI0NS Of COpGTOmLI W105 Of AANAILI, LZ81NA AND AIRA3J~ pAALEL C funs, Lland el Baw11, Baran Daiiealni at tlw auc eosnar of chic pared o! laad, on cha avotb boundar7 0! Ao7a1 Pacanc x673, Laed patasc e199, laud Coaslsalan~ Award 7713, Apace U to 9. •----ru and at cM wrth comas of Crane 7365 , to J. Fau, tha covsdfnaua o! acid polnc of Oailnalvi rdarrad to Co+arr a,evs Survy Trfaniulatiw Stition ^[ALID" MSai 115.60 last Soutb and ' 9]25.70 tact Yuc, chaata ruanlai b7 ariartba sruurad eloelvriw !rw ibw , Souch~ 1. 66r 00' ~ 9e2.00 tae along Ctast 7363 to J. A, fau; 2. e5• 00' 652.00 feat aloni Crant 1765 to J. A. lau; 1. 56• 45' 3050.00 tact aleni Crant 7765 to J. R. pau; m d, 77• 30' 1003.00 faac alovi Ctant 7567 ce Ya, Aalilhoo~alu; 0 ~ S. 4S• 66' 1197.50 feat aloni Grant 7367 to Ys. Aaliihoouln; 6. 179' 03• SO.Oe lent aloni eha ooteh •!da of SD-Foot load; 7. 65' 66' 3066.36 teat alone tha vest •Sde o! SO-Feot Avad; ~ ~ e. 16' 10' 2051.31 Leet aloni cha vest alda of 50.Fooc Aa T 4 ~ Road; `Y~ 3 ~ ~ l rC 9. 3B• 34' 1319.67 fact •loui cM reat ¦!de of 30.pooc TT ~ ' g i Road; ~.r 30, 723' 16' 2781.65 teet aloof tha avuch aide o1 50-Foot r'\\ .~r Beady ~Z C~~ ~~i 11. I70' DO' 9e1.59 feet •loni tM south alda of SO-Foot ti: :'''S`l: "J•~c~ . Road: i`t a~~ q 21. i i:l'4'~ ~ S } t ~ ! ~r^i' ` , - I ~ ~ ~ c.;'.i*a. ~'r~ ~ ''^j,. 1~ ~ > i ate . t'. a'`rj ti ' n; y,f y,. iii: - ~7 1952.3 469 f cy,,,•_~r20.717 Oeeebas 1], 1985 11. 716• )0' 1497.59 fast along the south aide et SO-Foot Mad to the oorchveat aide of Uppat Funs Mad; 17. thence along the nortMeai side o[ Upper Funa Road, the direst azimuth and distance Deing: 27' 4]' 30" L438. S6 feat; i 14. SS' il' 1S" 171.71 feet along the aorthvcat side o! Upper Pwa Mad; 15. 1'henca along the aorthveat rids of upper Ma Mad oo a curve to tM right ar1t6 •radiw of 350.00 feet, the Bard a:Samth and distance Deing: 79' D1' 13" 118.62 fa~t;s 16. 102• 33' 15" 518.59 feet along the nozchvect aide of Uppar Puna Mad; . 17. 2hmca along the~aortMcet rids o[ Uppez Puna Mad on • curve [o the left vlth a radius of 250.00 fact, the chord azimuth and distance Deing: 7T O1' 1S" 217.94 fact; 1B. S1' 43' 15^ 284.74 feet along tM norlMeat side of Uppet Puna Mad; • 19. Thence along [M aorthveat side o[ Uppar Puaa Mad oo • curve to the right vich a radiw of 4)5.00 test, the chord azie:uth and n distaste Deing: ~ SS• 01' 33" 55.36 teat; 0 20. SB' 31' 13" 734.]9 feet along the nortMeat aide of Dpper 0 Pwa Mad; 31. Ihenu along the northveat side o[ Uppet Funs Mad oo • curve to the Taft v1 [h a radiw et 450.00 feet, the chord azimuth sad distance De Sng: SO' 46' 15" 116.77 test; 22. 373' S0' 1230.91 fact along Craat 7771 to L. K. Bva1n; n 2J. 157' 70' 7467.50 feet along Grant 7597 to Louisa Suain, ~~t 'f Grant 7478 co L. E. Dlaisdell _ and the norcheeat end cf SO-Foot Mad: ~1~ s :i =v' 24. 127' 75' 2177.00 [sec along ]oi III-D of Upper Rafvu • r. y,; 25. 172' 29' 6915.35 feet along Parcel D of'Go"ernment l+nda; ~ ~.'j':.a 26. 258' 17' 379.94 lest along the couch aide of 20-Foot gg~ i Road: `Y.~' I ' a i, ~r ~ ~1. 27. 2L4' 12' 614.60 feat along the south side of 20-Foot ll ; :~j',i'; ;sr Mad; t• i! , R.S.: ; ~ 1 1 f I I _ t ! i ~ ~t`~r~-~` ~~i R`~ c; t-~';*'~; t:"~: `.19523c~~965T k i1 `'~~1~~ s .Pa y '~~A;i a!{~r. 0 737. ' r. Dacambar U, 19BS •~~28. 195' OB' 797.80 lent dot8 tha touch tlda of 20-Pont bad; ' 29. 2S6• 12' 787.69 tact along tha south t14 0! 20.Foot bad; 70. 2S6• OS' 1202.89 fast alont [M tooth alda of 20-Foot bad; 31. 256• 68' 287.02 fee[ aiooR [M touch aide of 20-Foot bad; 71. 262• 75' B)6, 64 feet stead tha south aide o[ 30.Foot bad; 73. 245' 28' 581.05 feet alotd [M touch tide of 20.Foot bad: 76, 262' 17' 379. dS feet aloof cM south aide of 10.Foot ' ~ Road: 15. 266' 20' 20.81 teat stood tht south aide of 30-Foot bad; 76. 260' 71' 1650.,87 feet stet[ the couch aide of 20-Foot Road; 37. 360• 67' 707.61 Pest aloof tM couch aide of 20-Fdot. bad: 7B. 709' OS' 1550.70 fact alend R.T. 66)5, R.P. 6887, L,P. 8200, L.C.Av. 771], Ap. li • to V. Rauulu; 79. 296• 22' 75J.00 fact stood R.P. 4675, R.T. 6883, L.P. 8200. L. [.Av. 7717, Ap. 16 ^ to V. R+mamalu; ~ 60. 286' 00' 2750.00 teat deaf R.L. 6675, L.P. 8199, ~ L. C,AV. 7)17, Ap. 17 to V. R.uaulu b to tM polo[ of beglmind and too- taloln{ ao ARG -0F 1970 ACRES, BORE OR LC55. E:ceptind and reaezrlnd thertirom ell e:latind tzal3a vithln . the above-des[rlbed Parcel 8. ' S{DtVET DIVISION x DEPAATTON7 OF ACCOUNFIRC AND GENERAL SERVICES STATE OF NANAIl i ~ } is , 4 zt ~ c RF•Ra n S. Nalvmura i+s~~ C; z tan rve7oc . ~ - ;x ' Compiled from CSF 9646 PC Yi and Gov[. Surve7 Re[ordt. '~;~~fi. ? ~..~.~i.. r ~7+ t. ~jj '1~~!`' - 'd.h' . e 1f ~.t ~ f6 i . ` 7 r_ I. ;'~"~V~~'1';f rrl,..h~ ' .s ~tiZ. ~r^~ J! yll,y`'~,~ 2~y• ! \^I}~.. ' T ~ 1 . w+..~,, devarnmant ~ 1 , : laude ' e+a••t d -1 se,~~o,~ fCe~ aeot) 9 ~ co + u ' j.~ ' ~ A'.` . , 1.e Cn 44 7 tV o A ~ a'b'le' tis~n ~ rn U ~ oo ~eee.ie us : ~ i o w ~ ou ti wr v^n ~o L y~w A/~ Op w w w _ ~,o D ne U i±w=t ~uu u A w on u L u O a ~ n m e fo N u J y Q^ e u " f n n !oAlZ C E L A f u" f 90 J Z'. ACRES ae a` [ f ~s~ fi ~ , 0 u • . y . u ~ ~•r ~ I rot p - .~e~ = 0 ~ Jam; `Y ~V• t k O »e' u' 1 ~ r w.,e Hero ~ ~ J O rt e•e.tt F. ~ :.d ce•oa'It= O O ~ ~O o w17G9.CT5. I 8.2td.41 w. ~ + ' 140• ED' ~ I >;-:y"~`. i te,zto.te tNeeT V.~="tr. ~b:linch•eO~ee4 _ _ POnTlONS OF GOYEISf•1MCNT tANt~s OF MAKUU KAOHE ~ ~ t , ,KAIMU,KAHENA,?SAPAANU AND KAMAIL! T^•C~:}, PARCCL A ~ y t ? Puna,laland of Hawaii,Nswaii :.i-~.•~ t Scale: 1 ineh• 300o Peet . •''•3 ~ _ .'Y.t' i i G J.M.M. :;.t < ; •P ~-t•io:n SURVEY DIVISION • ~;t;~, DEPARTMENT OF ACCOUNTING AND GENERAL SERVICES t:.• ~ ~5 STATE OF H WAIT 1 .~.1 ,Rw ~ I' ~ 1 li II? rl 1 : , ! Ir ~ e o l t( ~r t i t e EXHIBIT "B" DEVELOPED AREAS The developed azeas as of January 1, 2001, aze the access road, geothermal drill sites and azeas cleazed for geothermal drill sites. } •a N \`J~~ "~K71tY'.111+e~y { g~!* 1 drtl A~h'7 f ~ • d ~ . r ~'a ~S`i.-1~f+: Y~•~ A~'~. i{ +~VS~f~ ry,CD. ''SS __`~i .r. 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