Remember the "ceded lands" case? The one where the U.S. Supreme Court held 9-0 that the U.S. had absolute fee simple title to the ceded lands, and that the Apology Resolution was hortatory fluff? See Hawaii v. Office of Hawaiian Affairs, 129 S. Ct. 1436 (2009). We were all over that case, which we summarized here on our resource page.
After it reversed the Hawaii Supreme Court's decision, SCOTUS remanded the case back to the Hawaii court "for further proceedings not inconsistent with this opinion." Today, the Hawaii Supreme Court dealt with the last remaining thread in the litigation, the claim of one of the plaintiffs who refused to settle. Office of Hawaiian Affairs v. Housing and Community Development Corp. of Hawaii, No. 25570 (Oct. 27, 2009).
Since SCOTUS issued its opinion, all of the plaintiffs but one settled with the state. See slip op. at 2 n.2. The state challenged the standing of the holdout plaintiff to continue the fight, arguing that he asserted rights as a Hawaiian. The court held that the holdout plaintiff claimed standing both as a native Hawaiian, and as a member of the public. See Haw. Const. art. XII, § 4. See slip op. at 15. The court noted that the plaintiff was claiming specific rights as a Hawaiian, but that did not exclude him from claiming standing as a member of the public also. Id. at 17.
The court held the plaintiff met the "injury in fact" test for standing because he alleged he is a "Hawaiian member of the general public," and may "suffer cultural and religious injury if ceded lands are transferred from the trust in violation of the State's fiduciary duties." Id. at 20 (emphasis omitted). The court also noted the other two elements of the standing test were met (slip op. at 21 - 24).
However, the court concluded that while the holdout plaintiff has standing, his claims were not yet ripe. "[J]udicial review at this time would be premature and, additionally, would constitute a violation of the separation-of-powers doctrine," slip op. at 32, because the state legislature must first approve of any transfer of ceded lands, which it has not done here.
The court sent the case back down to the circuit court with instructions to enter a dismissal without prejudice. Slip op. at 33.
Charley Foster summarizes the opinion here.