Department of Hawaiian Home Lands land deal under fire

Three times over the past eight years, Edward Maria asked the Department of Hawaiian Home Lands whether it had any land he could lease in Kalaeloa for his trucking business.

His efforts proved fruitless.

So the DHHL beneficiary and Nanakuli resident gave up on getting department property and eventually signed a lease with a private landowner for an acre in Kalaeloa, where he operates EC Trucking.

Several weeks ago Maria was surprised to learn that the commission that oversees DHHL was about to issue a Canadian-owned company a right-of-entry permit and a conditional lease for up to 147 acres of Kalaeloa land for a proposed solar energy project.

Innergex Renewables USA, a subsidiary of Quebec- based Innergex Renewable Energy Inc., was one of four parties that submitted proposals to DHHL in January, responding to the agency’s solicitation for renewable energy projects at Kalaeloa. The department rated Innergex’s solar project the top proposal, and in July, six months after it was submitted, the commission approved the land deal in a 5-1 vote.

Maria and the Sovereign Council of Hawaiian Homestead Associations, an advocacy group, challenged the commission’s action. Both are seeking an administrative hearing to contest the approval.

The two parties are raising questions about the commission practice of turning over land from the department’s 203,000-acre land trust to nonbeneficiaries, typically through long-term leases or short-term rights of entry.

The trust was created by the federal government nearly a century ago to benefit those who are at least 50% Native Hawaiian. It was designed to promote the rehabilitation of Native Hawaiians mainly through a program in which beneficiaries are awarded residential, farming and ranching homesteads for 99 years at a cost of $1 annually.

For a variety of reasons, including money woes, poorly situated lands and mismanagement, DHHL historically has had a poor track record in meeting demand for such leases. It has made little progress in recent years paring a homestead wait list that numbers about 28,000 applicants statewide. Some have been on the list for decades.

Given the unmet demand, Native Hawaiians increasingly are calling into question commission approvals of leases, rights of entry or other use agreements that place nonbeneficiaries on trust lands not required or suitable for homesteading. The Kalaeloa acreage was so designated.

While DHHL says such deals raise needed funds to create more homestead lots, critics say the arrangements undermine the central purpose of the trust: to get Native Hawaiians onto the land.

The fact that the Kalaeloa deal involved a foreign- owned company added to their frustrations.

“We are so disgusted with all the shadiness,” said Pua Freitas, who has been waiting for a homestead lot since 2013 and is critical of the Innergex deal.

“DHHL has lost its way. They’ve forgotten the purpose of the land trust,” added Robin Danner, who is chairwoman of the sovereign council group and argues that no trust lands should go to nonbeneficiaries as long as Hawaiians remain on the wait list.

A department spokesman defended the Innergex deal, noting that the property — filled with revetments and historical bunkers, susceptible to sinkholes and lacking water and sewer infrastructure — was designated in the agency’s 2014 Oahu plan for renewable energy use.

And the plan was developed with feedback from beneficiaries, according to Cedric Duarte, the agency’s information and community relations officer.

While DHHL’s goal with long-term leases is to generate revenue through the highest and best use of the land, the agency’s primary focus remains creating homestead lots, and revenue from nonhomesteading agreements goes toward that, Duarte said.

“The department’s goal right now is trying to develop lots and get people off the waiting list and into homesteads,” Duarte said. “That’s the priority.”

DHHL expects to award 395 lots this year and has another 1,300 in the production pipeline over the next five years, he added.

Given the purpose of the Hawaiian Homes Commission Act, which created the trust, beneficiaries say Native Hawaiians should be given first crack at nonhomestead lands before those properties, such as the Kalaeloa parcels, are made available to the public.

Yet when beneficiaries or beneficiary-run groups make proposals, the proposals can languish at DHHL for years, critics say.

“They are totally oriented to fast-tracking nonbeneficiary initiatives on our land,” said Kekoa Enomoto, chairwoman of Pa‘upena Community Development Corp., a Native Hawaiian organization that has been trying since late 2016 to get a use agreement with DHHL for about 5,000 acres on Maui.

With the land, Pa‘upena plans to provide training in ranching and farming techniques to beneficiaries in line for homesteads.

Asked why Innergex was able to get a use agreement in six months while the Pa‘upena group has been at it more than two years, Duarte said the time frames are similar considering that the Kalaeloa land was identified for renewable energy use in 2014.

Beneficiary requests, he added, can take longer depending on the completeness of the proposal and whether it matches priorities established in the regional plans.

Beneficiaries say much of DHHL’s nonhomesteading lands is in the hands of nonbeneficiaries. For instance, only 14% of its general leases have been issued to Native Hawaiians or Native Hawaiian-managed organizations, according to DHHL data.

Beneficiaries also say the department basically has ignored preferences identified in federal law for getting Native Hawaiian-run businesses onto trust land.

One part of the law authorizes the commission to issue licenses for “theaters, garages, service stations, markets, stores and other mercantile establishments,” all of which must be owned by beneficiaries or organizations formed and controlled by them.

But only one such license — issued in 2001 — is in place now, according to DHHL. It is for a propane business on the Big Island.

“This is selective ignorance that is punishing our people,” Danner said.

The section in the federal law that permits DHHL to offer nonhomesteading lands to the public also includes a provision for preferential treatment for Native Hawaiians.

Before making the land publicly available, the department is “expressly authorized” to negotiate leases with beneficiaries or beneficiary-owned organizations for commercial, industrial or other business purposes, according to the law.

Duarte said mercantile licenses are options available to the commission and can be issued only to beneficiaries with homestead lots.

That section of the law was adopted in the 1940s, when most of the homesteads were agricultural and beneficiaries wanted to open retail outlets to serve their rural communities, according to Duarte.

Given the changes since then, he added, the challenge before the commission is how to get more beneficiaries onto nonhomestead lands while continuing to pursue its priority of developing homestead lots.

“The concerns that beneficiaries have are being heard by the commission and will continue to be heard,” Duarte said. “I don’t think the commission ever ignores beneficiary concerns. But I will say that the louder concern that we hear from applicants is, ‘Where’s my home?’ They want a homestead.”

The Innergex deal also has been criticized because DHHL did not provide widespread notification to beneficiaries to get feedback. Consulting with beneficiaries is required before the commission can approve such land agreements.

In the Innergex case, DHHL sent out about 1,400 letters to homestead lessees and applicants who live in the 96707 ZIP code area, which covers Kapolei and Makakilo, to invite them to a March public hearing on the proposal.

But that meant beneficiaries like Maria, who has a business in Kalaeloa but lives in Nanakuli, did not get the letter.

Only 10 beneficiaries attended the hearing.

That kind of limited outreach does not present good optics, according to DeMont Conner, who assisted Maria in filing the challenge to the Innergex decision.

“We don’t believe it was illegal,” Conner said. “We just believe it was ill-advised and shortsighted.”

Duarte said DHHL notifies beneficiaries who live in the area that potentially will be most affected by a proposed project.

Regarding Maria’s land requests, Duarte said DHHL could not issue him a disposition until the department implements a new policy for revocable permits, which are short-term agreements.

The Innergex right of entry approved last month gives the company access to the Kalaeloa site to conduct technical studies and do other work so it can submit a proposal when Hawaiian Electric, Oahu’s power provider, solicits requests for solar energy projects.

If Innergex eventually gets a deal with Hawaiian Electric, DHHL will issue a long-term lease for the Kalaeloa property.