As the clock winds down for six families in Kahana Valley, community supporters are preparing to stand with them in solidarity before the Oct. 27 eviction date.
Families who had been living in Kahana with revocable permits had been waiting for long-term leases to be issued by the state. When it was determined that the state did not have the authority to issue leases to them in addition to the 31 families with long term leases, they were sent eviction notices.
Kahana Valley is an intact ahupua'a, a basic ancient Hawaiian land division, on O'ahu featuring mountain, upland, and shoreline features.
Many of the valley's current residents, like community leader Annagen Kahala, have lived in Kahana with their families for generations, from before the time of Lili'uokalani.
"We have tried to work with the state," Kahala says. "They have put us through loops and we are now being evicted for their mistakes."
One of the problems resides in what Kahala calls a poorly-written law that prevents the state from issuing new leases to the families.
Act 5 from Session Laws of Hawai'i in 1987 authorized the Department of Land and Natural Resources (DLNR) to issue long-term residential leases to people who had lived continuously in Kahana Valley or had permits allowing them to reside there.
As a condition to the long-term lease, residents would agree to participate in the interpretive and educational programs in Kahana Valley State Park.
However, under the current interpretation of the law, DLNR's authority to issue these long-term leases expired on January 2, 1992, leaving the state with its hands tied and Native Hawaiian families homeless.
Attorney General advises against new leases
Eviction notices were sent to Kahana residents this year after DLNR chair Laura Thielen received a letter from Attorney General Mark Bennet in March.
Thielen had asked the attorney general if DLNR could issue new leases of residential lots at Kahana State Park.
In a five page response outlining Kahana's legal history, Bennet said, "No. The legislation authorizing issuance of such leases provides that the authority to do so ends, at the latest on July 1, 1993. This department's previous advice concerning this issue was in error."
Despite the state's previous efforts to qualify families for new leases, DLNR made the decision to follow the attorney general's latest interpretation of the law, which does not grant DLNR authority to keep Kahana Valley residents on their land.
In a June 2008 letter to the evicted families, Thielen explains that Bennet's reading of the law reversed previous advice given to the state from the attorney general in 2001.
She said that although applications for new leases were accepted between 1999 and 2008, State Parks were allowing residents to stay in Kahana only on a revocable permit.
A solution that needs fixing
Interest in Kahana Valley, the wettest area on O'ahu and the beginning of the Waiahole Ditch, is dated back to the early 1900s. The valley was also home to High Chiefess Analea Keohokalole, the mother of King David Kalakaua and Queen Lili'uokalani.
"Since the mid to late 1960s, the state contemplated condemnation proceedings strictly for Kahana's water resources," says Sunny Greer, a Juris Doctorate candidate at the W.S. Richardson School of Law and a Kahana lessee. "Only when the families protested evictions in the early '70s was the state faced with finding a solution to keep the families in Kahana."
The cultural living park established in Act 5 was intended to resolve conflicting interests between the state and the families living in Kahana.
The problem with that solution, however, is that the law limits the number of residential leases to only 31 families, Greer explains, because it does not take into consideration what happens for later generations of these families who each have multiple children.
"While the carrot is a 65-year lease that assures that families can remain in Kahana," Greer says, "the stick is that only 31 families were qualified and expressly written into law, with no option for renewal."
The result: a practical reality that pits 'ohana against 'ohana, with people waiting for lessees to default.
"In essence, the solution of the lease was really a way of trying to box a Native Hawaiian concept like ahupua'a living into a Western framework and this has failed miserably," Greer says.
Prior to the attorney general's recent interpretation of the law, revocable permits allowed for families who were not of the recognized 31 to remain in Kahana.
In the future, any special legislation to address those living in Kahana needs to have culturally-based solutions with good faith efforts from all parties, Greer explains.
"You can't have a cultural living park without it's people," Greer says. "To limit the amount to only 31 families for over 5,000 acres of ahupua'a does not make sense."
Greer says that previous legislative attempts to increase the number of leases failed due to budget constraints for housing, infrastructure requirements, and opposition from the DLNR.
Senate Bill 3
The Monday morning evictions come in the wake of several failed attempts by lawmakers to find a legislative solution that would reauthorize DLNR to issue more leases.
In 2005, House Bill 1664 would have done just that, but was met with opposition from the attorney general's office for violating a state constitutional provision forbidding special legislation for individual parcels of state-controlled land.
Senate Bill 3, introduced by State Senator Clayton Hee in the 2007 session, revisited granting the state authority to issue qualifying Kahana Valley families 65-year leases. The bill would have also established a monitoring system and enforcement mechanism to manage resident services to park programs, as part of the original 1987 agreement.
The methods of monitoring these services came to a head in 2003, when the question of whether records and time tables of their "payment" would be open to public scrutiny. In 2004, the Office of Information Practices found that disclosure of the records of the activities lessee's performed were indeed public.
The attorney general submitted testimony on Hee's bill in both the 2007 and 2007 sessions arguing that it was unconstitutional. The bill died two-thirds of the way through the legislative process.
DLNR is currently working with families to find transitional housing.
Supporters of the Kahana Valley residents will be sign-waving this afternoon in Kahana and showing support at the Board of Land and Natural Resources meeting on Friday, Oct. 24 at 9 a.m. on the corner of Punchbowl Street and Beretania Street.
With the letter of the law outweighing the immediate needs of a community, the fate of these Kahana residents remains, for the next few days, in the hands of state officials.
[Updated with the section "A solution that needs fixing" at 4:10 p.m. on Oct. 23, 2008]