IN THE UNITED STATES COURT OF APPEALS · Appeal No. 08-16704 . IN THE UNITED STATES COURT OF...

Appeal No. 08-16704

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

VIRGIL E. DAY et al, Plaintiffs-Appellants,

vs.

HAUNANI APOLIONA et al, Defendants-Appellees, AND

STATE OF HAWAI‘I, Defendant-Intervenor-Appellee _____________________________________

On Appeal From the United States District Court

for the District of Hawaiì Honorable Susan O. Mollway

Case No. 05-00649 SOM BMK

DEFENDANT-INTEVENOR-APPELLEE STATE OF HAWAI‘I’S

ANSWERING BRIEF

PROOF OF FILING AND SERVICE ______________________________________

MARK J. BENNETT

Attorney General of Hawaiì

WILLIAM J. WYNHOFF Deputy Attorney General

Department of the Attorney General, State of Hawaiì 465 King Street, Suite 300 Honolulu, Hawaiì 96813

Telephone: (808) 587-2988 • Fax: (808) 587-2999 E-mail: [email protected]

Attorneys for Defendant-Intervenor-Appellee

State of Hawai‘i

Case: 08-16704 01/02/2009 Page: 1 of 23 DktEntry: 6755468

Appeal No. 08-16704

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

VIRGIL E. DAY et al, Plaintiffs-Appellants,

vs.

HAUNANI APOLIONA et al, Defendants-Appellees, AND

STATE OF HAWAI‘I, Defendant-Intervenor-Appellee _____________________________________

On Appeal From the United States District Court

for the District of Hawaiì Honorable Susan O. Mollway

Case No. 05-00649 SOM BMK

DEFENDANT-INTEVENOR-APPELLEE STATE OF HAWAI‘I’S

ANSWERING BRIEF

______________________________________

MARK J. BENNETT Attorney General of Hawaiì

WILLIAM J. WYNHOFF

Deputy Attorney General Department of the Attorney General, State of Hawaiì 465 King Street, Suite 300 Honolulu, Hawaiì 96813

Telephone: (808) 587-2988 • Fax: (808) 587-2999 E-mail: [email protected]

Attorneys for Defendant-Intervenor-Appellee

State of Hawai‘i


TABLE OF CONTENTS PAGE

TABLE OF AUTHORITIES ii

I. JURISDICTIONAL STATEMENT 1

A. DISTRICT COURT JURISDICTION 1

B. APPELLATE COURT JURISDICTION 1

C. FILING DATES ESTABLISHING TIMELINESS OF APPEALS 1

D. FINALITY OR OTHER BASIS FOR APPEAL 1 II. STATEMENT OF THE ISSUES AND REVIEWABILITY 1

III. STATEMENT OF THE CASE 2

A. NATURE OF THE CASE 2

B. COURSE OF PROCEEDINGS 4

C. DISPOSITION BELOW 5

IV. STANDARD OF REVIEW 5

V. STATEMENT OF THE FACTS 5

VI. SUMMARY OF ARGUMENT 7

VII. ARGUMENT 8

VIII. CONCLUSION 15

IX. STATEMENT OF RELATED CASES 15


TABLE OF AUTHORITIES

PAGE

Federal Cases Arakaki v. Lingle, 477 F.3d 1048 (9th Cir. 2007) 2 Day v. Apoliona, 496 F.3d 1027 (9th Cir. 2007) 4, 15 Day v. Apoliona, 505 F.3d 963 (9th Cir. 2007) 4 Humanitarian Law Project v. Reno, 205 F.3d 1130 (9th Cir. 2000) 8, 10 Ove v. Gwinn, 264 F.3d 817 (9th Cir. 2001) 13 Perfect 10, Inc. v. Visa Intern. Service Ass'n, 494 F.3d 788(9th Cir. 2007), cert. denied, 128 S.Ct. 2871 (2008) 2, 5 Price v. Akaka, 3 F.3d 1220 (9th Cir. 1993) 7 Price v. Akaka, 928 F.2d 824 (9th Cir. 1990) 14 Price v. State of Hawaii, 921 F.2d 950 (9th Cir. 1990) 10-12 Rice v. Cayetano, 528 U.S. 495 (2000) 9 U.S. v. Afshari, 446 F.3d 915 (9th Cir. 2006) 9

Federal Statutes 28 U.S.C. § 1291 1 28 U.S.C. § 1331 1 28 U.S.C. § 1367 1 42 U.S.C. § 1983 1, 15 Hawai‘i Admission Act, Pub. L. 86-3, 73 Stat. 4 passim

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State Statutes Haw. Rev. Stat. § 10-3 13 Haw. Rev. Stat. ch. 10 3

Federal Rules FRAP 26(a)(3) 1 FRAP 4(a)(1)(B) 1 FRCP 56(c) 5


ANSWERING BRIEF OF DEFENDANT-INTERVENOR-APPELLEE STATE OF HAWAI‘I

I. JURISDICTIONAL STATEMENT

A. DISTRICT COURT JURISDICTION

Plaintiffs’ first amended complaint alleges violation of

federal rights under the Hawai‘i Admission Act, Pub. L. 86-3, 73

Stat. 4, which rights plaintiffs seek to enforce through 42

U.S.C. § 1983. The district court had jurisdiction pursuant to

28 U.S.C. § 1331 and 1343 and supplemental jurisdiction pursuant

to 28 U.S.C. § 1367.

B. APPELLATE COURT JURISDICTION

The district court entered judgment on June 20, 2008.

Appellants’ excerpts of the record (“ER”) at 29. The judgment

is final, because it resolved all remaining claims.

This court has jurisdiction pursuant to 28 U.S.C. § 1291.

C. FILING DATES ESTABLISHING TIMELINESS OF APPEALS

Final judgment was entered June 20, 2008. ER at 29.

Plaintiffs appealed on July 21, 2008. ER at 1-2. The appeal is

timely pursuant to FRAP 4(a)(1)(B) and FRAP 26(a)(3).

D. FINALITY OR OTHER BASIS FOR APPEAL

The appeal is from a final judgment.

II. STATEMENT OF THE ISSUES AND REVIEWABILITY

1. Whether plaintiffs can show a violation of section 5(f)

of the Admission Act where amounts expended on section 5(f)


purposes by the State as a whole far exceed income generated by

the ceded lands.

This issue was raised in the State’s Motion for Summary

Judgment and Separate and Concise Statement of Facts in Support

of Motion for Summary Judgment, both filed on June 4, 2008. ER

27. The district court did not address the issue, because it

granted summary judgment on other grounds. But of course, this

court “may also affirm on any ground supported by the record

even if the district court did not consider the issue.” Perfect

10, Inc. v. Visa Intern. Service Ass’n, 494 F.3d 788, 794 (9th

Cir. 2007), cert. denied, 128 S.Ct. 2871 (2008).

III. STATEMENT OF THE CASE

A. NATURE OF THE CASE

Pursuant to section 5(f) of the Admission Act, the State

holds land granted to it at statehood “together with the

proceeds from the sale or other disposition of [these] lands and

the income therefrom” as a public trust to be used for any one

of five purposes stated in the section. The lands in the trust

are commonly referred to as “ceded lands,” because they were

originally ceded to the United States by the Republic of

Hawai‘i. Arakaki v. Lingle, 477 F.3d 1048, 1054 (9th Cir.

2007).

The Office of Hawaiian Affairs (“OHA”) is a state agency

established in 1978 by an amendment to the Hawai‘i state

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constitution. OHA receives funds from the State. By state law

those funds are designated as a portion of the income from the

section 5(f) trust. See generally Haw. Const. art. XII, §§ 4-6

and Haw. Rev. Stat. ch. 10. Again pursuant to state law, OHA

uses these funds for the betterment of the conditions of native

Hawaiians - which is also the second of the five purposes

identified in the Admission Act. Id.

Plaintiffs claim OHA does not use all of the funds provided

to it for one or more of the five purposes. But this claim is

simply irrelevant in this federal court lawsuit. The only

requirement imposed by federal law is that the ceded lands,

“proceeds from the sale or other disposition of” the ceded

lands, and the “income” from the ceded lands be used for any one

or more of the five specified purposes. The State in fact

spends far more for the trust purposes of public education and

“the making of public improvements” than it receives in income

and proceeds from the ceded lands. Thus, even if OHA spends

some of the monies it receives outside the five purposes (and

the State does not in any way concede that has occurred), doing

so does not create a federal cause of action. As long as the

State, as a whole expends more on one or more of the five

purposes than it receives in income and proceeds, no plaintiff

may state a federal claim based upon alleged spending outside

the five purposes. Any claim that OHA, for example, has exceeded

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the limits imposed on it by state statutes with respect to its

use of funds raises issues of state law that are only cognizable

in a state court action.

B. COURSE OF PROCEEDINGS

Plaintiffs filed their complaint on October 13, 2005, ER 9,

and their first amended complaint on March 10, 2006. ER 13.

The court dismissed the complaint for lack of jurisdiction

on August 10, 2006. ER 14. Plaintiffs appealed as to the

Admission Act claim only. On appeal, this court reversed and

remanded. Day v. Apoliona, 496 F.3d 1027 (9th Cir. 2007). The

State moved for leave to intervene and sought rehearing en banc.

The motion for leave to intervene was granted. Day v.

Apoliona, 505 F.3d 963 (9th Cir. 2007). Rehearing en banc was

denied.

On remand, OHA defendants moved for summary judgment. ER

24. The State filed a separate motion for summary judgment. ER

27.

On June 20, 2008, the district court granted OHA’s motion

and “terminated” the State’s motion as moot. ER 31-65. The

district court entered judgment on that same day. ER at 29.

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C. DISPOSITION BELOW The district court entered judgment in favor of defendants.

ER 29.

IV. STANDARD OF REVIEW

This court reviews motions for summary judgment de novo.

Summary judgment should be granted when “there is no genuine

issue as to any material fact” such that “the moving party is

entitled to a judgment as a matter of law.” FRCP 56(c).

The appellate court “may also affirm on any ground

supported by the record even if the district court did not

consider the issue. Perfect 10, Inc. v. Visa Intern. Service

Ass’n, 494 F.3d 788, 794 (9th Cir. 2007), cert. denied, 128

S.Ct. 2871 (2008).

V. STATEMENT OF THE FACTS

Only one fact is relevant to the State’s argument: each

year the State as a whole expends far more on the purposes set

out in section 5(f) than it receives in income and proceeds from

the ceded lands.

This undisputed and indisputable fact is attested by the

Declaration of the State Director of Finance Georgina K.

Kawamura, and the public records attached to the declaration as

Exhibits B – F, filed below SER 1-29. Specifically, the

declaration and exhibits establish that the State’s Department

of Education spent more than $8.1 billion in general funds on

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"the public schools and other public educational institutions" –

just one of the five trust purposes - in the fiscal periods

covered by plaintiffs’ complaint: FY 2003, $1.418+ billion; FY

2004, $1.428+ billion; FY 2005, $1.513+ billion; FY 2006,

$1.798+ billion; FY 2007, $1.964+ billion.1

In stark contrast, during fiscal years 2006 and 2007, the

State reporting collecting $116,385,149 and $128,480,574,

respectively, from the use of section 5(f)’s lands. Declaration

of Arthur J. Buto ¶ 3, SER 27.2

1General fund appropriations for the Department of Education during these same fiscal periods totaled $8,257,495,902: FY 2003, $1,324,683,947; FY 2004, $1,444,389,060; FY 2005, $1,522,690,924; FY 2006, $1,803,359,849; FY 2007, $2,162,372,122. See Exhibit G to Kawamura Declaration. SER 22-24. For the above periods, the Legislature appropriated more than $2.6 billion in general funds for support of other public educational institutions (such as the University of Hawaii system), see Exhibit G, and more than $1.0 billion for capital or public improvements, see Exhibit H. SER 22-24 and 25. In addition, more than $2.19 billion in general funds has been appropriated to the Department of Education for spending on "the public schools and other public educational institutions" in fiscal year 2009. See Declaration of Georgina K. Kawamura, para. 5. SER 6. 2These reported amounts actually overstated the receipts by approximately $40 million. Declaration of Arthur J. Buto ¶ 6, SER 28. The exact amount of the receipts is immaterial to this legal issue, however, as the ratio between the general fund spending for the State Department of Education alone in FY 2007 (excluding other spending on permitted Admission Act purposes) and the reported (overstated) FY 2007 section 5(f) land receipts exceeds 15 to 1. When University of Hawai‘i appropriations are added, the FY 2007 ratio rises to more than 20 to 1.

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VI. SUMMARY OF ARGUMENT

The only federal law obligation imposed on the State that

is relevant in this lawsuit is that income and proceeds from the

section 5(f) trust be expended for any one or more of the trust

purposes. This court has held that the State does not have the

same obligations of accounting and tracing that a trustee of a

private trust might. Thus, there is no federal law requirement

that the State trace every dollar received as ceded land income

and tie it to a particular expenditure for a 5(f) purpose. If

the State can demonstrate that it spends on 5(f) purposes (or

one 5(f) purpose like public education) far more than it

receives in income and proceeds from the ceded lands, then it

has proven full compliance with any trust requirement in the

Admission Act concerning income and proceeds from the ceded

lands.3 A fortiori, no federal claim can be based on an

allegation that certain other spending is outside of section

5(f)’s five purposes, because even were such a claim proven, it

would be irrelevant for federal law purposes.4

3 The State still of course must use the ceded lands themselves for 5(f) purposes, but there is no claim in this lawsuit concerning the uses to which the ceded lands themselves are put. 4 “Whether the [OHA] trustees breached their fiduciary duties under Chapter 10 of the H.R.S. is a matter of state law which we do not reach.” Price v. Akaka, 3 F.3d 1220, 1222 (9th Cir. 1993).

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VII. ARGUMENT

The State of Hawai‘i is obligated to hold the public trust

lands granted to it by the Admission Act, “together with the

proceeds from the sale of other disposition of any such lands

and the income therefrom” as a public trust for one or more of

five purposes, including “the support of the public schools and

other public educational institutions" and “the betterment of

the conditions of native Hawaiians."

It is an undisputed and indisputable fact that the State

spends more money “for the support of the public schools and

other public educational institutions” - one of the five

permissible Admission Act purposes - than it receives as income

and proceeds from the public land trust. It follows that no

state actor is or can be in violation of the Admission Act

because of the expenditure of public trust land income or

proceeds on an impermissible purpose. Plaintiffs’ federal

claims in this case fail for this reason, independent of the

grounds relied on by the district court.

This result is not only compelled by Ninth Circuit holdings

(as set forth below), it also makes common sense. Income is

money, and money (as opposed to the public trust lands

themselves, and the actual uses of those lands, which are both

regulated by the Admission Act) is fungible. Humanitarian Law

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Project v. Reno, 205 F.3d 1130, 1136 (9th Cir. 2000); U.S. v.

Afshari, 446 F.3d 915 (9th Cir. 2006).

The State has the right, for example, to spend all public

trust fund income to support public education, and for several

decades did so. See Rice v. Cayetano, 528 U.S. 495, 508 (2000)

(“In the first decades following admission, the State apparently

continued to administer the lands that had been set aside under

the Hawaiian Homes Commission Act for the benefit of native

Hawaiians. The income from the balance of the public lands is

said to have ‘by and large flowed to the department of

education.’ Hawai‘i Senate Journal, Standing Committee Rep. No.

784, pp. 1350, 1351 (1979)”). No person could have made out a

§ 1983 violation in 1969 by showing that a particular dollar

traceable to public trust land income that was supposed to have

been spent on public education, had not been spent for that

purpose.

It is a complete defense to plaintiffs’ claims for the

State to demonstrate, as it did, that fifteen or twenty times

the total public trust land income was being spent by the State

on public education.5

Indeed, the very concept of tracing a particular dollar is

irrelevant. The State could, if it chose, adopt a system of

5This analysis leaves unaffected any state law claim against an individual for spending money in violation of state law, if there were such a violation.

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accounting by which it simply placed all public land trust

income in its general fund. If it kept reasonable track of the

amount of that income, that type of accounting system could not

be violative of section 5(f). If that were how the State kept

its books, it is obvious that the only way a § 5(f) income

violation could be demonstrated would be by a showing that the

State failed to spend an amount equal to the public land trust

income on one or more permissible purposes (as there could be no

tracing of individual dollars). That the State has not chosen

to adopt such an accounting system cannot mean, however, that an

individual Hawai‘i citizen can make out a § 1983 violation by

showing anything less than that the State has failed to spend an

amount equal to the public land trust income on one or more

permissible purposes. As a matter of federal law “money is

fungible.” Humanitarian Law Project, 205 F.3d at 1136.

That trust land income was spent in 2008 for the

“betterment of the conditions of native Hawaiians,” as well as

public education does not change the calculus. There can be no

§ 1983 violation because the State as a whole spends many times

the total public trust land income on one or more of the

permissible five Admission Act purposes.

Price v. State of Hawaii, 921 F.2d 950 (9th Cir. 1990),

compels this result. Price begins its discussion of the nature

of Admission Act claims with the following statement:

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Under the Act, the ceded lands are to be held upon a public trust, and under section 5(f) the United States can bring an action if that trust is violated. However, nothing in that statement indicates that the parties to the compact agreed that all provisions of the common law of trusts would manacle the State as it attempted to deal with the vast quantity of land conveyed to it for the rather broad, although not all-encompassing, list of public purposes set forth in section 5(f).

921 F.2d at 955. Price continues:

There can be no doubt that the provisions of the [Admission] Act must be looked to when we consider the nature and extent of the State's duties and powers. That is a simple and universal trust principle. [citations omitted]. * * * * Nor can it be said that section 5(f) generally creates a trust which demands the exacting standards of administration that the United States has often imposed upon itself when it is dealing with Native Americans. [citation omitted]. With the exception of the Hawaiian home lands, for which special provisions are made in section 4 of the Act, no such extraordinary concerns appear to inform section 5(f). Given that, it would be error to read the words “public trust” to require that the State adopt any particular method and form of management for the ceded lands. All property held by a state is held upon a “public trust.” Those words alone do not demand that a state deal with its property in any particular manner even if, as a matter of prudence, the people usually require a close accounting by their officials. Those words betoken the State's duty to avoid deviating from section 5(f)'s purpose. They betoken nothing more. Therefore, it is not for us to declare that certain methods of holding, managing, and accounting for the ceded lands and income must be followed by the State and its officials. Whether the trust administration paradigm or some other paradigm informs

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http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW8.05&fn=_top&sv=Split&tc=-1&findtype=L&docname=48USCAS5&db=1000546&vr=2.0&rp=%2ffind%2fdefault.wl&mt=Hawaii



http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW8.05&fn=_top&sv=Split&tc=-1&findtype=L&docname=HICNART12S4&db=1000522&vr=2.0&rp=%2ffind%2fdefault.wl&mt=Hawaii



the management method selected is a matter for the State's determination. It follows that the appellants cannot succeed on their claims that section 5(f) has been violated simply because the State has commingled the ceded lands and their income with other lands and income, or because it has not invested in what appellants deem to be a prudent manner, or because the lands are in the hands of various departments and agencies of the State. As we noted in Price v. Akaka, as long as the lands or income remain in the hands of the State they remain impressed with the public trust created by the Act. 915 F.2d at 472. It is true that we would lift our eyebrows were a private trustee to commingle trust funds committed to its administration, but that does not suggest that we should find that the State and its officials have violated section 5(f) when they do so. * * * * We recognize that this view of the allocation of power between the State and the federal government in section 5(f) could make it more difficult for parties who are attempting to assure that the State does adhere to its responsibilities. That is so because the various rules which apply to private trustees are admirably well designed to prevent and allow early detection of diversions of trust funds. On the other hand, our reading of section 5(f) rests on the apparent decision by the parties involved in the Act that the State and its officials would proceed with a certain degree of good faith and need not be held to strict trust administration standards. Our reading also helps assure that the federal courts will not become involved in the micro management of the government of the State. While we must stand ready to correct diversions of funds from the listed purposes, we need not and should not immerse ourselves in the day-to-day activities of state officials as they struggle with the immense task of managing the resources of the State for public purposes.

Id. at 955-56.

This language compels the result urged here. As a matter

of state law, public trust land receipts transferred to OHA must

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http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW8.05&referencepositiontype=S&serialnum=1990136603&fn=_top&sv=Split&tc=-1&findtype=Y&referenceposition=472&db=350&vr=2.0&rp=%2ffind%2fdefault.wl&mt=Hawaii




be “held and used solely as a public trust for the betterment of

the conditions of native Hawaiians."6 But if OHA has failed to

abide by this provision as plaintiffs claim, the remedy for that

failure must be a state law remedy, not a § 1983 remedy.7

The language of section 5(f) itself, and the language of

Price quoted above, make clear that as regards income from the

public trust lands, no particular system of accounting is

required, and no duty to trace specific dollars exists. Thus no

actionable federal civil rights claim exists, because the State

is spending far more on allowable section 5(f) purposes than it

receives in public trust land income.

Any contrary holding by this Court would impose on the

State, as a matter of federal law, the requirement to implement

an accounting system that could trace particular dollars taken

in, to particular dollars spent. Such a holding would be

directly contrary to Price.

6Haw. Rev. Stat. § 10-3 (1985) provides:

A pro rata portion of all funds derived from the public land trust shall be funded in an amount to be determined by the legislature for this purpose, and shall be held and used [by OHA] solely as a public trust for the betterment of the conditions of native Hawaiians.

7State law cannot form the basis of a § 1983 claim unless the violation of that law also results in a constitutional or federal law violation. Ove v. Gwinn, 264 F.3d 817, 824 (9th Cir. 2001).

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The argument made herein is admittedly new. The State has

never previously presented the facts justifying this essentially

fact-based summary judgment argument to a district court and

this court has never previously ruled upon it.8

The State wishes to make clear that its argument neither

undercuts the purposes of the Admission Act, nor leaves an

allegedly aggrieved party remediless. First, the Admission Act

requirement that the section 5(f) lands themselves be held as a

public trust for the five permissible section 5(f) purposes

remains untouched. Lands, unlike money, are not fungible. As

long as the State holds public trust lands, it must hold them in

accord with section 5(f) of the Admission Act. And, as noted

above, if OHA is spending money in violation of state law,

8Some Ninth Circuit language may mistakenly be construed as imposing tracing obligations. E.g. Price v. Akaka, 928 F.2d 824, 827 (9th Cir. 1990): “Transferring a portion of the § 5(f) trust income to a state agency, however, did not dissolve or dilute the restrictions on how that income may be spent. So long as § 5(f) trust income remained in the hands of the state, as it did when transferred from the § 5(f) corpus to the OHA corpus, the § 5(f) obligations applied." However, the argument the State makes here was made in neither case (nor in any other). And, while it is a correct legal principle that mere transfers among state agencies cannot change section 5(f) obligations, that principle is in no way inconsistent with the proposition urged here — there can be no breach of section 5(f)’s income obligations if the State is spending far more on section 5(f)’s purposes than it is receiving in public trust land income. Federal law does not require any particular state agency to spend money on trust purposes. OHA has no more federal law obligation to do so than does (for example) the State Department of Commerce and Consumer Affairs.

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plaintiffs can ask a state court (or the state Legislature) to

hold OHA to its statutory and State constitutional obligations.

But what is also clear (and dispositive for this case) is

that the State as a whole is spending proceeds from the ceded

lands (and more) on section 5(f) trust purposes. Nothing more

is required as a matter of federal law.

VIII. CONCLUSION

Plaintiffs’ federal law claims rest solely on the premise

that public trust land income appropriated to OHA is being spent

other than a the permissible section 5(f) purposes.

Because the State of Hawai‘i as a whole, however, spends

far more on permissible section 5(f) purposes than the total

amount it receives in public land trust income, this issue is

simply irrelevant.

The judgment below should be affirmed.9

IX. STATEMENT OF RELATED CASES

The State is not aware of any related cases within the

meaning of Circuit Court Rule 28-2.6 other than the case

identified by appellants.

9The State also believes and asserts that plaintiffs have no private right of action to redress their claim that the State has violated provisions of the Admission Act by suing under 42 U.S.C. § 1983. This argument is foreclosed here by Day v. Apoliona, 496 F.3d 1027 (9th Cir. 2007), but is asserted here to preserve it for possible Supreme Court review on certiorari.

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DATED: Honolulu, Hawai‘i, January 2, 2009.

/s/ William J. Wynhoff William J. Wynhoff Deputy Attorney General Attorney for Defendant-intervenor-Appellee State of Hawai‘i


CERTIFICATE OF SERVICE

I hereby certify that on January 2, 2009, I electronically

filed the foregoing with Clerk of the Court for the United

States Court of Appeals for the Ninth Circuit by using the

appellate CM/ECF system.

Participants in the case who are registered CM/ECF users

will be served by the appellate CM/ECF system.

WALTER R. SCHOETTLE, ESQ. P.O. Box 596

Honolulu, Hawai‘i 96809-0596 Attorney for Plaintiffs LISA W. CATALDO, ESQ. McCorriston Miller Mukai MacKinnon LLP Five Waterfront Plaza, 4th Floor

500 Ala Moana Boulevard Honolulu, Hawai‘i 96813

Attorney for Defendants Current Trustees of the Office of Hawaiian Affairs I further certify that some of the participants in the case

are not registered CM/ECF users. I will hand deliver, or mail

the foregoing document by First-Class Mail postage prepaid for

delivery within 3 calendar days, to the following non-CM/ECF

participants:

CHARLEEN M. AINA Deputy Attorney General, State of Hawai‘i 425 Queen Street Honolulu, Hawai‘i 96813 Attorney for Defendants Former Trustees of the Office of Hawaiian Affairs Clayton Hee and Charles Ota


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DATED: Honolulu, Hawai‘i, January 2, 2009.

/s/ William J. Wynhoff William J. Wynhoff Deputy Attorney General Attorney for Defendant-intervenor-Appellee State of Hawai‘i


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