Archie Kalepa: Waterman

Makai Ocean Lifestyle Magazine

Archie Kalepa: Waterman

By Kimberly Lehano

“Eh! You better swim cuz if gotta swim out dea and get you, you goin’ be sorry!” Young Archie Kalepa, who was 12 years old at the time, will never forget those words, spoken by the famous Eddie Aikau … not directed at him, but at another fellow beachgoers. As a youngster, Kalepa remembers catching the bus everyday to Waimea Bay on Oahu’s North Shore, to catch the waves. As Kalepa remembers, “There was a military guy out there with a broken hand, drunk, and caught in the rip currents…I’ll never forget it.” Kalepa remembers having the utmost respect for Aikau, as the military surf-hopeful, looked scared for his life; however Kalepa didn’t know if he was more fearful of drowning, or to be humbled by a big, Hawaiian lifeguard infamous for riding big waves. Memories as vivid as that one, shaped who Archie Kalepa is today. And the world thanks his memories for making him into the life-saving, big-wave riding surfer that he is today.

Maui born and raised, this 5 th generation Lahaina resident, 42-year old Archie Kalepa knows what a wave is … what its like to be on top of one, and has studied waves enough to respect, nurture, and appreciate them. Last winter, Kalepa rode a wave incomprehensible to some; a humongous, 60-foot monster. Kalepa realized that the experience was not only physically and mentally exhilarating, but hitting a high, emotionally, that few can say in a lifetime they’ve experienced, something for him that was as much of a down as it was a high, little after he rode the biggest wave of his life. He described what he realized, was depression, not because he wasn’t happy, but because he had just experienced the highest feeling a big-wave rider could experience; the euphoria of riding the biggest wave of his life. “I came out and it was so emotional I was crying … but went through a depression a month later. The emotional “come-down” was so big after riding a wave that size, nothing could come close to the feeling that ride gave me,” said Kalepa.

So riding big waves, has become a part of this Maui native’s life. Where did his ocean-savvy-ness come from? His family, Kalepa notes. Kalepa’s grandfather, Dallas Kalepa, Sr., was a very well-known fisherman in Lahaina, where every summer, Kalepa and his family would visit the elder Kalepa’s Hawaiian arts class where he would take the children in the class fishing and camping, teach them things Hawaiian and all about the ocean. “This is where my love for the ocean began,” remembers Kalepa. “My grandfather was not only a well known net fisherman but a war hero as well. To this day, I have people coming up to me who claim that my grandfather took care of him in Vietnam, and that they’d be dead right now if it weren’t for him (grandfather),” says Kalepa. It may be Kalepa’s only regret in life, not to join the armed forces, with such vibrant and important role models such as his father (who served three tours, and was the oldest enlisted person in Vietnam at age 54) and grandfather. “I regret it only because of how proud I am of my dad and grandfather; of their contributions to America and I couldn’t have any better role models than that … I feel I want to be that, and carry on the tradition,” states Kalepa. Somehow, I think that he’s made an impact on his children already, as well as much of Hawaii, without realizing. Kalepa’s future is filled with no doubt, ocean, and waves, but for now, a little more of something else.

Married to wife Alicia, Kalepa has been in the midst of experiencing another life-changing experience: fatherhood. Having recently become a father of two (twins, aged one year old), Kailie and Kayla, Kalepa’s outlook on life, and tasks, have changed a bit, but his overall appreciation for life, remains the same. Says Kalepa, “Although I find myself making bottles a lot, in fact, I’m very good at making bottles, I don’t think I’ll ever change … my biggest contribution to my family is that when my kids grow up, I can share my knowledge of the ocean with them.” He feels if he stops doing everything he is doing today (surfing, saving lives, etc.), he’ll “lose it, and become rusty.” Continues Kalepa, “I hope that I can teach them everything about the ocean, and most of their learning comes from their dad. This is who I am, I don’t want to change because my life changes. I always tell my wife, just because our lives change doesn’t mean our lifestyles have to change … we can maintain what we did in the past, and we’ll be better parents, and happier with our lives.” Happy or not, Kalepa was forced with critical decision-making, during Hurricane Iniki which hit the Hawaiian Islands in 1992. He recalls of the day like it was yesterday. Living in Kihei, Maui, at the time, he remembers waking up that morning, September 11, 1992, and looking at the waves as he was driving to Lahaina, on his way to teach a jet ski class, all the while thinking, “Wow, the waves are giant, huge.” He recalls seeing huge waves in spots where there were normally no waves at all. “Places were breaking with 20 foot waves that never even had surf on a normal day,” said Kalepa. When Kalepa arrived on lifeguard duty, surf was only at five feet or so. Then, right after he looked at the conditions, the boats, and waves, he noticed the fire department drive away. He remembers telling the fire department to return, and sure enough, the first 30 foot set came tumbling in. As Kalepa started to pull swimmers and surfers out of the violent surf, one of the firemen, named Ken Delima, began to help him, and the two are lifetime friends, ever since. The sights that day, stand out in Kalepa’s mind the most. He remembers people jumping out of their boats, and in panic mode. All of a sudden, he noticed a huge sailboat, the same sailboat that won America’s Cup that year. “It got totally demolished; I saw a 35 foot wave go over the mast, over this boat that was 50 feet long,” said Kalepa. The day was chaotic, but a very positive thing came about, in addition to the lives saved. Because of the heroic and successful efforts of Kalepa and Delima, using jetskis as rescue equipment, jetskis, as used in rescue are now looked at with much more respect. Prior to that day of numerous rescues, for various reasons, people of all backgrounds weren’t too happy with Kalepa and others riding around on, patrolling, on their jetskis. They’d receive negative yells, signs, people even showing vulgar gestures, as Kalepa and crew would ride around on them. After Iniki? Respect, and gestures, but this time, in the form of friendly waves and hellos. Jet skis are now implemented and developed into the ocean safety program with Maui county. Thus began the start of a company started collaboratively with a few friends, called Maui Water Patrol.

So what advice does this life-saving, big-wave riding Maui native have for ocean lovers out there who want to pursue what he’s done? Train. Whether its through some government agency, friends, or watermen, this is Kalepa’s advice: “Anything you can learn, to benefit your skills that will make you a better waterman, lifeguard, whatever it may be, use it … its out there, you just, as an individual, have to be willing to learn.” He says safety plays a huge factor in wave-riding, regardless of skill level. “My big thing today about riding waves is that it has definitely helped me become more well rounded and knowledgeable about a lot of other things I want to do,” says Kalepa. He explains that riding big waves is not just the act itself. “When surfing big waves, a huge percentage is knowledge, but there’s also physical fitness and safety,” says Kalepa. “A lot of people can go out and say they ride big waves, but how many of them can go out and be safe about what they do?” questions Kalepa.

So what does Kalepa do, then to mentally and physically prepare for big waves, whether in rescue or ride mode? “I have to be prepared in every aspects; to reduce the risk I do things for my spiritual and physical well-being,” says Kalepa. Trail-riding is one way Kalepa fixes the physical preparedness. “Its very physical, but very mentally physical as well; you have to pay attention, and the minute you stop paying attention, you’re in trouble, just like in surfing, its all related,” says Kalepa. He has also tried canoe surfing (which he feels has helped his surfing tremendously because of focus on lineups, and everything involved with canoe surfing), yoga, POWER90 workouts, and running. For his spiritual preparation, he has to have a clear mind and conscience. “I need the blessings from my family, my wife. I don’t want to go out on a day where you’re in an argument or something negative; you need total commitment and support from your family and loved ones; its critical,” emphasizes Kalepa. He continues,“When you are focused on the positive and not negative things, your mind is clear, and you have a better mental picture of it all, which helps you surf a lot better.” He also mentions that you need to have a good relationship with your tow partner, built on trust and communication, to successfully ride big waves.

So to sum it up? What is big wave riding, according to Kalepa? His answer: “ Its about being totally committed in the moment … and being totally focused at the time … and when you can make those two connections, the feeling you receive is totally unexplainable.”

Some fun “Archie” facts: **Lono, don’t know if you want this, but just decided to get it in case you want it!

Favorite food : Sashimi

Fave surf spot : Piahi, Honolua Bay, but Kalepa “loves Makaha because of the people I get to hang with there and the atmosphere … Makaha is my most favorite place to surf.”

On Hawaii : Water sports are really healthy and they’re a big part of Hawaii, and it’s a treasure that we have, as a community, or as a people, we have to live that life as much as we possibly can, its one of the thigns that Hawaii has to relate to the rest of the world, keeps us all healthy and smiling everyday in Hawaii …

Favorite movie : Band of Brothers

Favorite day/holiday : January 11 th ; his twins’ birthdays …

Favorite music : Israel Kamakawiwo`ole, aka “Iz”

Favorite television show : House

On Jack Johnson : “In life there is, once in awhile, a split in the road, [where] both sides of the road, both are good paths to take … and I think what decides success, regardless, [is if]you go into it wholeheartedly, you put your best into it …that it is what you love, and what you need to do, to make ends meet and do it to the best of your ability … I really love his music, his music really its very unique and its just such a pleasure to hear, warms your heart and makes your heart feel good …

On tourism in Hawaii : I think that it was inevitable, because of the beauty, everyone wants to be a part of it, and to own some of it … I’d like to see a bigger part, some sort of ocean safety awareness … some sort of funding where some monies go BACK into ocean safety programs in ALL counties. There is lots of money being made because of people coming here and if you were to interview 100 people on a plane, all 100 of them will say at least once in my Hawaii agenda, I want to put my feet in sand and go into the beach. That’s why ocean safety should be a big part of the state’s focus.

Thomas R. and Christine D. Brayton v. Heirs and/or Devisees of Dallas K. Kalepa, Lahaina

IN THE CIRCUIT COURT OF THE SECOND CIRCUIT STATE OF HAWAII

CIVIL NO. 07-1-0090(3) (Other Civil Action)

AMENDED SUMMONS THOMAS R. BRAYTON and CHRISTINE D. BRAYTON, Plaintiffs, vs. HEIRS and/or Devisees of DALLAS K. KALEPA also known as DALLAS KAUKAHA KALEPA, SR., Deceased, Et al. Defendants.

AMENDED SUMMONS CIVIL NO. 07-1-0090 IN THE CIRCUIT COURT OF THE SECOND CIRCUIT STATE OF HAWAII TO: HEIRS and/or Devisees of DALLAS K. KALEPA, also known as DALLAS KAUKAHA KALEPA, SR., Deceased; HEIRS AND/OR Devisees of KAPAHI (K); Heirs and/or Devisees of KAPU (K), Deceased; Heirs and/or Devisees of KEALOHA (W); Heirs and/or devisees of KAAUNEKE (K), Deceased; JAMES STIEBINGER; TROY MCCASLAND; SUSAN MCCASLAND; LARRY J. KUSUDA; YOSHIKO KUSUDA; WILFRED N. KUSUDA; MAY FUJIWARA; and Heirs of persons named above who are deceased, or persons holding under said Heirs, and spouses, assigns, successors, personal representatives, executors, administrators, and trustees of persons named above who are deceased; DOES 1 through 100; and all other persons unknown claiming any right, title, estate, lien or interest in the real property described and TO ALL WHOM IT MAY CONCERN.

YOU ARE HEREBY NOTIFIED that Plaintiffs THOMAS R. BRAYTON and CHRISTINE D. BRAYTON claim fee simple ownership, together with others, to: All of those lands at Kooka, Lahaina, Maui, Hawaii, portions of Tax Map Key (2) 4-6-06-07, namely, all of Royal Patent No. 5710, Land Commission Award No. 11147 to KAPAHI; and portions of Royal Patent No. 7393, Land Commission Award No. 336 to KAPU; and a portion of Land Commission Award No. 3418-B, Royal Patent No. 7502 to KAAUNEKE.

YOU ARE HEREBY FURTHER NOTIFIED that Plaintiffs THOMAS R. BRAYTON and CHRISTINE D. BRAYTON have filed a Complaint to Quiet Title in the Second Circuit Court, Wailuku, Maui, Hawaii, requesting that title to the above-described real property be determined quieted as to any and all adverse claims not presented and/or adjudicated in this action.

YOU ARE HEREBY SUMMONED to appear in the courtroom of the Honorable Joseph E. Cardoza, Judge of the above entitled Court, Hoapili Hale, 2145 Main Street, Wailuku, Maui, Hawaii, on Wednesday, the 26th day of September, 2007, at 8:30 a.m., or to file an answer or other pleading and serve it before said day upon Plaintiffs’ counsel TOM C. LEUTENEKER, Carlsmith Ball LLP, 2200 Main Street, Suite 400, Wailuku, Maui, Hawaii 96793, to show cause, if any you have, why the prayer of said Complaint should not be granted. Unless you file an answer before the time aforesaid or appear at the Second Circuit Court, Wailuku, County of Maui, State of Hawaii, at the time and place aforesaid, your default will be recorded, and said Complaint will be taken as confessed and a judgment by default will be taken against you for the relief demanded in the Complaint.

DATED: Wailuku, Maui, Hawaii, July 18, 2007. C. CASIL CLERK OF THE ABOVE ENTITLED COURT CARLSMITH BALL LLP TOM C. LEUTENEKER 0721-0 One Main Plaza, Suite 400 2200 Main Street, P.O. Box 1086 Wailuku, Maui, HI 96793-1086 Tel No. 808.242.4535 Fax No. 808.244.4974 Attorneys for Plaintiffs THOMAS R. BRAYTON and CHRISTINE D. BRAYTON (Hon. Adv.: Aug. 1, 8, 15, 22, 2007) (A-279782) Updated on 08/01/2007.

Kau Agribusiness v. Mason, Ahulau

Kau Agribusiness v. Mason

NO. 24228

IN THE SUPREME COURT OF THE STATE OF HAWAII

KAU AGRIBUSINESS CO., INC.,
Plaintiff-Appellee

vs.

MELVIN GLENN MASON, SR. and MATHILDA NOELANI
BATALONA MASON, Defendants-Appellants

and

HEIRS AND ASSIGNS OF AHULAU, et al., Defendants

APPEAL FROM THE THIRD CIRCUIT COURT
(CIV. NO. 00-1-0292)

ORDER DISMISSING APPEAL
(By: Moon, C.J., Levinson,
Nakayama, Ramil, and Acoba, JJ.)

Upon review of the record, it appears that the circuit court’s April 11, 2001 judgment, the Honorable Greg K. Nakamura, presiding, is a judgment on some, but not all of the quiet title claims in Civil No. 00-1-0292. The judgment is not certified as a final judgment under HRCP 54(b) and the appeal of the judgment is premature. See HRS § 641-1(a); HRCP 54(b). Therefore,

IT IS HEREBY ORDERED that this appeal is dismissed for lack of jurisdiction.

DATED: Honolulu, Hawaii, August 21, 2001.

Goss v. Keahialaka

NO. 21896

IN THE SUPREME COURT OF THE STATE OF HAWAI`I

---

JOHN T. GOSS, as Trustee in Bankruptcy of
HAMAKUA SUGAR COMPANY, INC., and ENSERCH DEVELOPMENT
CORPORATION HAMAKUA, INC., Plaintiffs-Appellees

vs.

KEAHIALAKA (w), aka KEAHI, et al., Defendants

and

MELVIN GLENN MASON, SR. and MATHILDA NOELANI
BATALONA MASON, Defendants-Appellants

---

APPEAL FROM THE THIRD CIRCUIT COURT
(CIV. NO. 96-022)

ORDER DENYING MOTION FOR RECONSIDERATION
(By: Moon, C.J., Levinson, Nakayama, Ramil, and Acoba, JJ.)

Upon consideration of Defendants-Appellants Melvin Glenn Mason, Sr. and Mathilda Noelani Batalona Mason’s “Memorandum Opposition to the Supreme Court of the State of Hawaii’s May Term to Summary Disposition Order file[d] on May 9, 2001,” which this court will deem as a motion for reconsideration of the Summary Dispositon Order filed on May 9, 2001,

IT IS HEREBY ORDERED that the motion for reconsideration filed on May 24, 2001 is denied.

DATED: Honolulu, Hawai`i, June 4, 2001.

Melvin Glenn Mason, Sr. and
Mathilda Noelani Batalona
Mason, Defendants-Appellants
pro se, on the motion

Goss v. Keahialaka

Goss v. Keahialaka

NO. 21896 IN THE SUPREME COURT OF THE STATE OF HAWAI`I ____________________________________________________________________________ JOHN T. GOSS, as Trustee in Bankruptcy of HAMAKUA SUGAR COMPANY, INC., and ENSERCH DEVELOPMENT CORPORATION HAMAKUA, INC., Plaintiffs-Appellees vs. KEAHIALAKA (w), aka KEAHI, et al., Defendants and MELVIN GLENN MASON, SR. and MATHILDA NOELANI BATALONA MASON, Defendants-Appellants ____________________________________________________________________________ APPEAL FROM THE THIRD CIRCUIT COURT (CIV. NO. 96-022) SUMMARY DISPOSITION ORDER (By: Moon, C.J., Levinson, Nakayama, Ramil, and Acoba, JJ.) In this quiet title action, defendants-appellants Melvin and Mathilda Mason (the Appellants) appeal from the third circuit court’s final judgment entered May 5, 1998 quieting title in, among other parcels of real estate, Royal Patent Grant No. 1968 to Kanalua in plaintiffs-appellees John T. Goss, trustee in bankruptcy of Hamakua Sugar Company, Inc., and Enserch Development Corporation Hamakua, Inc. (the Appellees). On appeal, the Appellants, proceeding pro se, argue, inter alia, that the circuit court erroneously granted the Appellees’ motions for summary judgment as to Royal Patent Grant No. 1968 to Kanalua. Upon carefully reviewing the record and briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised, we hold, by virtue of the Appellants’ noncompliance with Hawai`i Rules of Appellate Procedure (HRAP) Rules 28(b)(3) (requiring a statement of the case, together with record references), and 28(b)(4) (requiring a concise statement of points of error on appeal), as well as the Appellants’ failure to advance a comprehensible argument as required by HRAP Rule 28(b)(7), that the Appellants have failed to provide viable arguments so as to enable this court to determine whether there is any theory which might entitle the Appellants to relief. Mendes v. Heirs and/or Devisees of Kealakai, 81 Hawai`i 165, 169, 914 P.2d 558, 562 (App. 1996). Because the judgment of the circuit court comes before this court with a presumption of validity, State v. Makaila, 79 Hawai`i 40, 45, 897 P.2d 967, 972 (1995), the Appellees are entitled to an affirmance. Ala Moana Boat Owners’ Ass`n v. State, 50 Haw. 156, 158-59, 434 P.2d 516, 518 (1967). Moreover, this court has found no error in law or equity which would entitle the Appellants to relief. Therefore, IT IS HEREBY ORDERED that the circuit court’s August 17, 1998 amended final judgment is affirmed. DATED: Honolulu, Hawai`i, May 9, 2001. On the briefs: Melvin Glenn Mason, Sr. and Mathilda Noelani Batalona Mason, defendants-appellants pro se Tom C. Leuteneker and Sherrill Atwood, of Carlsmith Ball Wichman Case & Ichiki, for plaintiffs-appellees

Mervin Napeahi v. William Paty 1988-1990

Mervin Napeahi v. William Paty 1988-1990

If anyone knows this person, and if he’s still alive it would be good to share with him the knowledge that there was never a transfer of jurisdiction from Ko Hawaii Pae Aina to the United States.

That is why there are no United States Patents here…there is Palapala Sila Nui and Palapala Hooko, still in the names of the original owners, subject to koe nae.

There are no ceded lands here in Ko Hawaii Pae Aina. We don’t care about how much the land is worth in dollars, it is for our children, and their children, and their children’s children, forever and ever.

921 F.2d 897

Mervin NAPEAHI, individually and on behalf of all those
similarly situated, Plaintiff-Appellant,
v.
William PATY, in his capacity as Director of the Department
of Land and Natural Resources, State of Hawaii,
Defendant-Appellee.

No. 87-1844.

United States Court of Appeals,
Ninth Circuit.

Argued and Submitted Dec. 13, 1988.
Decided Dec. 18, 1990.

Alan T. Murakami and Livia Wang, Native Hawaiian Legal Corp., Honolulu, Hawaii, for plaintiff-appellant.

Edwin P. Watson, Deputy Atty. Gen., State of Hawaii, Honolulu, Hawaii, for defendant-appellee.

Appeal from the United States District Court for the District of Hawaii.

Before HUG, TANG and KOZINSKI, Circuit Judges.

HUG, Circuit Judge:
1

This action concerns an alleged breach of trust by the State of Hawaii in the manner in which the state officials defined the shoreline of a parcel of privately owned real property. The state official’s certification of the high water mark of the ocean waves along the shoreline of the parcel resulted in including 1.75 acres within the boundary of the privately owned parcel, rather than as submerged land held by the State in trust for the people of Hawaii.I.

Overview
2

The State of Hawaii, under the act that admitted it to statehood, holds certain lands that were ceded to it by the United States in trust for particular uses and purposes. One of those purposes is “for the betterment of the conditions of native Hawaiians.” Mervin Napeahi, in his capacity as a native Hawaiian and a beneficiary of that trust, brought this action for breach of trust against the Director of the Department of Land and Natural Resources for the State of Hawaii in his official capacity. The complaint sought injunctive and declaratory relief.
3

Napeahi contends that by abandoning to a private landowner approximately 1.75 acres of tidal land, which he claims is ceded trust land, the State of Hawaii has breached the trust. In contrast, the director, who is charged with the administration of the trust, maintains that the disputed area is private property rather than ceded public land. After a six-day trial, the district judge found that the area was private land and entered judgment for the director. The principal issue in this appeal is whether the district judge erred in finding that the director was correct in concluding that the area in contention is private land.
4

This case varies from the usual Hawaiian shoreline dispute in that it is not a contest between the State and a private landowner of sea coast land as to the seaward boundary. In this case, the State and the landowner agree. Instead, it is a beneficiary of the ceded land trust who contends that the State erred in its determination of the seaward boundary, thus depriving the trust of a parcel of land that should have remained subject to the terms of the trust. The landowner is not a party to this action and has developed the area in question as a part of its hotel complex. Thus, the injunctive and declaratory remedies sought by Napeahi would only affect the State in relation to the beneficiaries of the trust.

II.

Historical Background
5

The boundary dispute that animates this appeal depends, for its resolution, on events that transpired over a hundred years ago. Originally, all Hawaiian land was owned collectively by the people of Hawaii and held in trust for their benefit by the King. However, in the mid-nineteenth century, King Kamehameha III, responding to pressure exerted by foreign residents who sought fee title to land, undertook a dramatic reformation of the traditional system of land tenure. A vast land division, the “Great Mahele,” ensued under which the King retained certain lands for his own private use, set aside other lands for the government, and distributed the remaining tracts to private individuals.
6

The Hawaii Supreme court has thoroughly detailed the history and procedures followed in establishing the title and boundaries of parcels of land after the Great Mahele. See State By Kobayashi v. Zimring, 566 P.2d 725, 729-31 (Haw.1977). Briefly, we may summarize this as follows. An award by the King in the Great Mahele, itself, did not transfer title. A recipient was required to apply to the Land Commission to obtain the actual award of the land. Because the number and size of the tracts of land distributed pursuant to the Great Mahele were enormous, “[n]o body of surveyors could have been found in the country or practically could have been brought [t]here, who might have surveyed these large estates within the lifetime of half the grantees.” In re Boundaries of Pulehunui, 4 Haw. 239, 240 (1879). For this reason, and because from ancient times every portion of land found on the Hawaiian Islands had been given a name, these original transfers from the Land Commission were made in name only without a description of boundaries. After conducting a survey to procure a more precise description of the land that the grant encompassed, application could be made to the Commissioner of Boundaries to obtain a definitive determination of the scope of the award. It was only after the boundaries of the land had been surveyed and defined by the Commissioner of Boundaries that a Royal Patent could be obtained.
7

After the overthrow of the Kingdom of Hawaii, these Royal Patents were recognized but the Republic of Hawaii assumed title to all lands held by the government and by the King. These properties, which became public lands, included all submerged lands surrounding each island to one marine league seaward (three miles). See Bishop v. Mahiko, 35 Haw. 608, 642-45 (1940). Subsequently, the Republic ceded all public lands (including submerged land) to the United States pursuant to the Treaty of Annexation of 1897 and the Joint Resolution of Annexation of 1898, 30 stat. 750. Thereafter, when Hawaii became a State in 1959, these “ceded lands” (except for certain land occupied by the United States Government) were returned to the State of Hawaii to be held in public trust for the people under the Hawaii Admission Act of 1959, Public Law 86-3, 73 Stat. 4. Section 5(f) of the Act provided in pertinent part that
8

[t]he lands granted to the State of Hawaii … together with the proceeds from the sale or other disposition of any such lands and the income therefrom, shall be held by said State as a public trust for the support of the public schools and other public educational institutions, for the betterment of the conditions of native Hawaiians, as defined in the Hawaiian Homes Commission Act, 1920, as amended, for the development of farm and home ownership on as widespread a basis as possible for the making of public improvements, and for the provision of lands for public use. Such lands, proceeds, and income shall be managed and disposed of for one or more of the foregoing purposes in such manner as the constitution and laws of said State may provide, and their use for any other object shall constitute a breach of trust for which suit may be brought by the United States.
9

One of the land transfers that occurred under the Great Mahele was an award by King Kamehameha III to his wife, Queen Kalama, of the ili of Anaehoomalu on the Island of Hawaii. (An ili is an ancient Hawaiian unit of land.) Queen Kalama followed the procedure we outlined above and was ultimately issued both a Certificate of Boundary and a Royal Patent covering the ili of Anaehoomalu grant.

III.

Facts and Procedures
10

The private property owners involved in this case are successors in interest under Queen Kalama’s Royal Patent. The dispute in this case centers around 1.75 acres of tidal land which Napeahi contends is not part of the private parcel of land but, instead, is “ceded land” subject to the terms of public trust under the Hawaii Admission Act.
11

In 1976, the Department of Land and Natural Resources for the State of Hawaii, pursuant to new regulations requiring shorelines to be certified for zoning and setback purposes, certified the shoreline at Waiulua Bay (where the tidal lands are located) indicating that the disputed tidal pond area was situated seaward of the shoreline. However, in 1984, at the urging of the holders of the Kalama Patent who wished to develop the area, the state agency recertified the shoreline concluding that the disputed tidal pond area fell landward of the coastal boundary. After successfully moving for recertification, the holders of the Kalama Patent applied for and received a dredge and fill permit authorizing development of the tidal lands. The present action originally was brought in an attempt to block blasting and dredging of the tidal pool area, but, after injunctive relief was denied, the property was graded and developed as planned. It is currently being used as part of the Hyatt Waikoloa Beach Resort Hotel.
12

Originally, the plaintiffs in this action complained of numerous instances of misconduct in the handling of the disputed tidal pond area.1 However, after their request for injunctive relief was denied, they dropped several counts and added a new count, for the first time alleging that the State’s abandonment of the land to private individuals constituted a breach of Hawaii’s ceded lands trust.2 Subsequent settlement negotiations resulted in an agreement to proceed to trial in the matter solely on the breach of trust issue.
13

After a six-day bench trial, the district judge concluded that the disputed tidal pond area was situated within the private property boundaries of the ili of Anaehoomalu. He found that as of July 7, 1898 (the date the Joint Resolution of Annexation was approved), the tidal lands at issue were private rather than public property and therefore could not have been among the lands ceded by the Republic of Hawaii to the United States. The court reasoned that since the disputed tidal pond area is not ceded land, its use or misuse fails to implicate the public trust provisions of the Hawaii Admission Act. As a final matter, the district judge held that any natural change of the seaward boundary since 1898 that would have made the disputed area submerged land would not have resulted in its being subject to the terms of the ceded land trust. This appeal followed.

IV.

Interpretation of Royal Patent No. 7523
14

Possession of a Royal Patent is conclusive evidence of legally cognizable private title to the Hawaiian land that it describes. See Zimring, 566 P.2d at 731. A district court’s construction of such a document is reviewed de novo by the appellate courts. See United States v. Pappas, 814 F.2d 1342, 1343 & n. 2 (9th Cir.1987); cf. Belcher v. Elliott, 312 F.2d 245, 247 (6th Cir.1962) (construction of a deed is a “legal question requiring [the] [c]ourt to interpret the meaning of the words … contained in the deed”). The underlying factual determinations upon which that construction is based, in contrast, are reviewed for clear error. See Pappas, 814 F.2d at 1343 n. 2.
15

King Kamehameha awarded the ili of Anaehoomalu to his wife, Queen Kalama, during the Great Mahele in 1848. Thereafter, in 1854, the Land Commission awarded her the land in name only. It was not until 1880, over 30 years later, that the land was first surveyed in an attempt to establish a more precise description of its boundaries. The task of surveying the Anaehoomalu grant fell to J.S. Emerson and resulted in the creation of a set of field notes which contains a metes and bounds description of all of the property’s boundaries, including the disputed shoreline boundary. Emerson also prepared a map that reproduces pictorially his conclusions regarding the ili’s parameters. Interestingly, the map itself contains two written descriptions of the parcel’s limits which, while they specifically refer to the land boundaries in terms of metes and bounds, do not describe the shoreline boundary so precisely, stating instead that this borderline can be located “along the seacoast at high water mark.”
16

In 1881, both the field survey notes and the map prepared by Emerson were submitted to the Commissioner of Boundaries for the Island of Hawaii so that a definitive determination of the boundaries of the ili of Anaehoomalu could be made. After considering the notes and map provided by Emerson, and correcting one land boundary in order to resolve a dispute with an adjacent landholder, the Commissioner issued Certificate of Boundary No. 131 covering the Anaehoomalu grant. With the one minor exception mentioned above, this certificate expressly adopts the metes and bounds descriptions of the land boundaries that were generated by Emerson’s survey. Rather than specifically endorsing Emerson’s metes and bounds description of the shoreline, however, the Certificate of Boundary refers to the parcel’s seaward border only in general terms as existing “along the seacoast at high water mark.” A Royal Patent covering the ili of Anaehoomalu was issued later that year by the Minister of Interior of the Kingdom of Hawaii to Queen Kalama. It contains a description of the ili’s boundaries that is identical to the one found in the earlier Certificate of Boundary.
17

There was considerable dispute at trial as to whether the certification of the Commissioner and, in turn, the Royal Patent, actually incorporated Emerson’s metes and bounds description of the shoreline or whether the patent simply left the seaward boundary to be defined as the high water mark. Although the metes and bounds were not actually incorporated in the wording of certification and the Royal Patent, the map and the description filed with the office are significant evidence that those metes and bounds delineated the high water mark at that time.
18

The Hawaii Supreme Court noted in In re Application of Ashford, 50 Haw. 314, 452, 440 P.2d 76 (1968), that “Hawaii’s land laws are unique in that they are based on ancient tradition, custom, practice and usage. The method of locating the seaward boundaries was by reputation evidence from Kamaainas and by the custom and practice of the government’s survey office.”3 Id. 440 P.2d at 77 (citation omitted). The court noted that it was the practice for the Kamaainas who knew and lived in the area to go on the land with the government surveyors and point out the boundaries. The supreme court held “that according to ancient tradition, custom and usage, the location of a public and private boundary dividing private land and public beaches was along the upper reaches of the waves as represented by the edge of vegetation or the line of debris.” Id. at 78.
19

There is ample basis to conclude that the location of the seaward boundary, as reflected in government surveyor Emerson’s metes and bounds description, was the high water mark derived in the traditional Hawaiian manner and, therefore, the seaward boundary. Thus, we find no error in the district court’s determination that, at the time the public land was ceded by the Republic of Hawaii to the United States in 1898, it did not include the 1.75 acres in contention.

V.

Change in Shoreline
20

The determination of the shoreline boundary as it existed in 1898 does not, however, end the inquiry. We must determine whether the State has acquired additional submerged land since 1898, and if so, whether it became part of the ceded land and, thus, subject to the terms of the public trust provisions of the Hawaii Admission Act.
21

The Hawaii Supreme Court has held that the seaward boundary of ocean front property can change through erosion, resulting in the State acquiring title to the newly eroded submerged lands. County of Hawaii v. Sotomura, 517 P.2d 57, 61 (1973), cert. denied, 419 U.S. 872, 95 S.Ct. 132, 42 L.Ed.2d 111 (1974). The court stated that “the precise location of the high water mark on the ground is subject to change and may always be altered by erosion.” Id. The court held that, when the seaward boundary changes inland by erosion, the State owns and may obtain title to the additional submerged land that results. Id.
22

The Royal Patent to the parcel of property here in question described the seaward boundary as located “along the seacoast at high water mark.” Under the holding of Sotomura, that boundary can change through erosion and result in an addition to the submerged public land. There was conflicting evidence at trial as to whether this had occurred.
23

A secondary question exists, however. Even assuming that the seaward boundary has changed since 1898, resulting in additional state owned submerged land, does this constitute “ceded” land subject to the trust? The director argues that land which became submerged since 1898 could not be “ceded” land because it was not then part of the public land ceded to the United States, and only this “ceded” land was returned to Hawaii to be held in trust.
24

The Hawaii Supreme Court dealt with a similar problem in Zimring. In that case, the issue was over the title to land that had been newly created on the seashore as a result of a lava flow. The court, after carefully reviewing the history of Hawaiian land law, concluded that this was ceded land subject to the terms of the public trust. 566 P.2d at 739. The district court in the case before us concluded that the Zimring case was inapplicable to this case because it involved land created by a lava flow, not submerged land created by erosion. However, the reasoning of the Hawaii Supreme Court in Zimring is equally applicable here. The supreme court noted that according to the terms of the Joint Resolution of Annexation, the Republic of Hawaii ceded to the United States
25

the absolute fee and ownership of all public, Government, or Crown lands, public buildings or edifices, ports, harbors, military equipment, and all other public property of every kind and description belonging to the Government of the Hawaiian Islands, together with every right and appurtenance thereunto appertaining.
26

Id. at 735-36 (emphasis in original). The supreme court held that the property ceded included both choate and inchoate property, noting that Article 15 of the Republic’s constitution described the territory of the Republic as including territory that “may hereafter be added to the Republic.” Id. at 736. The court went on to hold that the Republic voluntarily chose to cede all its property interests and that this included the right to future lava extensions. The court stated:
27

Since the right to future lava extensions was conveyed to the United States at the time of annexation, any lava extension thereafter created should be considered to be among the “lands and properties that were ceded to the United States by the Republic of Hawaii under the joint resolution of annexation.” [Admission Act Sec. 5(g) ]. Such land passed to the State of Hawaii pursuant to section 5(b) of the Admission Act. The State thus obtained title to the disputed lava extension upon admission in 1959.
28

Id.
29

There is no reason to distinguish the inchoate property interest in submerged land that could be acquired by the State as the result of erosion from that which could be acquired by a lava extension. Both were inchoate property interests which Zimring held to be property that was ceded to the United States and then returned to the State in 1959. Thus, the holdings in Sotomura and Zimring require us to conclude that if the 1.75 acres became submerged land because of natural erosion after 1898 and before being altered by the actions of the property owner, then that property would be ceded lands subject to the terms of the trust.
30

There was conflicting evidence presented at trial as to whether the 1.75 acres that was included within the privately owned parcel in 1898 later became submerged land through a natural erosion of the seashore. The district judge did not make a factual finding on this issue because he concluded that if the property in question was within the private property boundary in 1898, then it could not become property subject to the terms of the trust thereafter. This conclusion does not accord with the Hawaii Supreme Court’s rulings in Sotomura and Zimring. Thus, we must remand the case to the district court for a finding on whether the acreage in question naturally became submerged land by erosion within the meaning of Ashford, Sotomura, and Zimring after 1898 and before the physical alteration of the area by the property owners. If it did, then it would have become land subject to the terms of the trust and the land would have been improperly abandoned in violation of the terms of the trust. If not, then it remained private land and there was no breach of trust.
31

The case is remanded to the district court for the required findings and, based upon those findings, an appropriate judgment on the declaratory and injunctive relief sought by Napeahi.
32

AFFIRMED in part, and REMANDED.
1

The original complaint alleged the following: (1) failure to certify compliance with State Water Quality Standards pursuant to Sec. 401 of the Clean Water Act; (2) violation of EPA-Corps Guidelines for issuance of a section 401 dredge and fill permit; (3) violation of the National Environmental Policy Act; (4) failure to remove illegal fill; (5) violation of the Rivers and Harbors Act; and (6) violation of the Hawaii Constitution, Art. XI, Sec. 9
2

Although the parties have not, in this case, raised the issue of standing to enforce the provisions of the Trust, Napeahi, as a native Hawaiian and beneficiary of this public trust, does have standing to enforce its provisions. See Price v. Akaka, 915 F.2d 469, 471-72 & n. 2 (9th Cir.1990)
3

A Kamaaina is generally defined as “a person familiar from childhood with any locality.” Ashford, 440 P.2d at 77 n. 2

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Aki, Alaka, Sniffen, Lipiki, Uluihi, Alana, Makakoa, Keola, Puleloa, Kahoe, Keaka, Enoka, Keanapuni, Mikala, Kahale, Kahala, Malae, Moe, Maela, Sniffen, Kula, LCAw 6414

Puleloa, Kahoe, Keaka, Enoka, Keanapuni, Mikala, Juliana, Kahale, Kahala, Malae, Moe, Maela, Makekau, Derego Puupuu, Kaiaokamalie, Kula, LCAw 6414

MAKAPONO PARTNERS, LLC v. HEIRS AND/OR DEVISEES OF M. SOL SIMEONA, aka M. S. Simeona, aka Solomona

NOT FOR PUBLICATION

NO. 24096

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI`I

MAKAPONO PARTNERS, LLC, a Hawai`i limited liability
company, Plaintiff-Appellee, v. HEIRS AND/OR
DEVISEES OF M. SOL SIMEONA, also known as
M. S. Simeona, also known as Solomona Simeona,
also known as Simeona Opio, Deceased, et al.,
Defendants-Appellees; and JULY SIMEONA,
Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CIV. NO. 99-237K)

MEMORANDUM OPINION
(By: Burns, C.J., Watanabe and Foley, JJ.)

Defendant-Appellant July Simeona (July) appeals from the Final Judgment entered by Judge Ronald Ibarra on February 12, 2001, in favor of Plaintiff-Appellee Makapono Partners, LLC (1) (Makapono). We affirm.

BACKGROUND

On December 30, 1999, Makapono filed a “Complaint for Quiet Title, Partition and Damages” (Complaint), seeking to establish itself as the owner of the parcel of land (the Land) described as

[a]ll of that certain parcel of land (being all of the land described in Land Commission Award No. 7354, Royal Patent Nos. 8032 and 8033 to KALUA[)], situate[d] at Puapuaa 1, District of North Kona, Island and County of Hawaii, State of Hawaii, containing an area of 2.20 acres, more or less, and commonly designated by Tax Map Key [(TMK)] 7-5-016:010.

Makapono sought to “be declared and adjudged to be the owner of the subject property by reason of deed and/or adverse possession.”

In his typewritten letter to the attorney for Makapono, which was filed with the circuit court on April 6, 2000, July stated that Makapono’s Complaint was “unlawful and should be dismissed.” Judge Ibarra characterized July’s letter as a motion to dismiss under Hawai`i Rules of Civil Procedure (HRCP) Rule 12. On April 24, 2000, Makapono filed “Plaintiff’s Memorandum in Opposition to Defendant July Simeona’s Motion to Dismiss.” By letter dated April 25, 2000, July sought to change the venue of this case “to Honolulu.” (2) On May 31, 2000, Judge Ibarra entered an “Order Denying Defendant July Simeona’s Motion to Dismiss and Motion for Change of Venue.”

In a “Pre-Trial Statement” filed on November 27, 2000, July stated, in relevant part, as follows:

STATEMENT OF FACTS

The record clearly provides that said real estate consisting of 2.20 acres . . . was the property of D. W. Kalua, [July’s] great, great grandfather having TMK: 7-5-016-010 . . . .

. . . .

CONCLUSIONS OF LAW

. . . .

3. Said Law – Hawaii’s Constitution titled Quieting Title Art. XVI, Section 12. (3) [July] finds unconstitutional if not a racist act, for it applies to only one ethnic race – Hawaiians. More importantly said Law violates Federal Law, the Bill of Rights Art. XIV Section 1 in pertinent part;

“No state shall make or enforce any law which shall abridge the privileges or immunities of Citizen of the United States; nor shall any state deprive any person of Life, Liberty, or Property without due process of Law;” . . .

CONCLUSION AND RELIEF

[July] herein requests this Honorable Court, for the aforementioned Conclusions of Law must determine Jurisdiction as to whether or not . . . this court has Jurisdiction and that [July’s] costs, fees and other expenses be reimbursed in defending his rights.

[July] herein begs this Honorable Courts indulges that due to lack of Public Transportation and financial circumstances attending said hearing at 8:30 AM from Waimanalo, Hawaii was extremely difficult for this 80 year old defendant. Therefore, [July] herein requests that the court accepts [July’s] pre-trial statement as suffice to a Jury Trial. [July] welcomes any questions by telephone.

(Footnotes added; emphasis in original.)

On December 27, 2000, Makapono filed “Plaintiff’s Motion for Default and/or Summary Judgment.” On January 4, 2001, July filed “Defendant[‘]s Objections to Plaintiff[‘]s Motion of Judgment/Summary Judgment” in which he asserted “Constitutional Rights to a Jury Trial[.]”

On February 12, 2001, following a hearing on January 22, 2001, at which July did not appear, (4) Judge Ibarra entered the court’s “Findings of Fact, Conclusions of Law and Order Granting Plaintiff’s Motion for Default and/or Summary Judgment.” The appealable Final Judgment was entered on February 12, 2001. July filed a notice of appeal on February 22, 2001.

STANDARD OF REVIEW

The circuit court’s grant or denial summary judgment is reviewed de novo under the same right/wrong standard applied by the circuit court. Roxas v. Marcos, 89 Hawai`i 91, 116, 969 P.2d 1209, 1234 (1998) (citation omitted); Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 74 Haw. 85, 104, 839 P.2d 10, 22, reconsideration denied, 74 Haw. 650, 843 P.2d 144 (1992) (citation omitted). Waikiki Malia Hotel, Inc. v. Kinkai Properties Ltd. Partnership, 75 Haw. 370, 381, 862 P.2d 1048, 1056 (1993); HRCP Rule 56(c). Summary judgment is proper where “there is no genuine issue as to any material fact and where the moving party has clearly demonstrated that it is entitled to judgment as a matter of law.” Petran v. Allencastre, 91 Hawai`i 545, 554, 985 P.2d 1112, 1121 (App. 1999). See, e.g., Gossinger v. Ass’n of Apt. Owners of Regency of Ala Wai, 73 Haw. 412, 417, 835 P.2d 627, 630 (1992); Namauu v. City & County of Honolulu, 62 Haw. 358, 614 P.2d 943 (1980); HRCP Rule 56(c). “A fact is material if proof of that fact would have the effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties.” Hulsman v. Hemmeter Dev. Corp., 65 Haw. 58, 61, 647 P.2d 713, 716 (1982) (citations omitted). In a motion for summary judgment, “we must view all of the evidence and the inferences drawn therefrom in the light most favorable to the party opposing the motion.” Morinoue v. Roy, 86 Hawai`i 76, 80, 947 P.2d 944, 948 (1997) (quoting Maguire v. Hilton Hotels Corp., 79 Hawai`i 110, 112, 899 P.2d 393, 395 (1995)) (brackets omitted).

DISCUSSION

Noncompliance With the Rules

July’s pro se opening brief does not comply with Hawaii Rules of Appellate Procedure (HRAP) Rule 28(b), which specifies the format and requirements of an opening brief. July’s noncompliance with HRAP Rule 28(b) includes, among other things, the failure to include (1) a subject matter index and a table of authorities, HRAP Rule 28(b)(1); (2) a “concise statement of the case, setting forth . . . the course and disposition of proceedings in the court . . . appealed from, and the facts material to consideration of the questions and points presented” on appeal, HRAP Rule 28(b)(3); (3) a “concise statement of the points of error set forth in separately numbered paragraphs,” HRAP Rule 28(b)(4); (4) a “brief, separate section, entitled ‘Standard of Review,'” HRAP Rule 28(b)(5); and (5) an “argument, containing the contentions of the appellant on the points presented and the reasons therefor,” HRAP Rule 28(b)(7). Notwithstanding such violations, the Hawai`i Supreme Court favors a policy of affording pro se litigants “‘the opportunity to have their cases heard on the merits, where possible[.]'” Housing Fin. and Dev. Corp. v. Ferguson, 91 Hawai`i 81, 85-86, 979 P.2d 1107, 1111-12 (1999) (citation omitted). Accordingly, pursuant to Ferguson, we address the merits of the issues raised by July as we discern them to be.

Record Title

Record title to the Land started in the 1800s by “Land Commission Award 7354, Royal Patent Nos. 8032 and 8033 to Kalua.”

The record indicates that William Kalua (Kalua) had a son named T. N. Simeona, whose wife was named Kamakani Simeona (Kamakani). It further appears that T. N. Simeona and Kamakani had two sons, M. Sol. Simeona and Ikeole, and that Ikeole is July’s father.

The record contains (1) an 1892 conveyance from Kalua to his grandson, M. Sol Simeona, also known as S. M. Simeona, M. S. Simeona, Jr., Solomon Simeona, and Simeona Opio, and (2) a 1909 conveyance from “Kamakani Simeona, wife of T. N. Simeona, deceased and, mother and heir of S. M. Simeona, deceased[,]” to Emmaline H. Liftee. Thereafter, the chain of title leads to Makapono’s acquisition of the Land by deed dated October 8, 1999, from Patrick J. Duarte.

July introduced no evidence to counter Makapono’s asserted claims, except for a single quitclaim deed of various parcels of land, including the Land, from Ikeole Simeona to his wife, Anna Scott Simeona, on January 20, 1956, recorded in the Bureau of Conveyances, Territory of Hawai`i, in Liber 3162, page 487. This deed states, in relevant part, as follows:

Being the same premises that were sold and conveyed by William Kalua (widow), 1/3 undivided interest to Mele Keawe (w), by certain Deed recorded in the Bureau of Deeds in Liber 167, on Page 51, together with that certain Deed executed by Kamakani my beloved mother who sold and conveyed an unknown undivided interest to the said Emmaline Liftee within the said land granted to Kalua (k) of recorded in Liber 328, on Page 7 and 8.

Other than this deed, there was no evidence that July’s father, Ikeole, had any interest in the Land.

Makapono need not prove that it has superior title against any and all other parties, but merely that it has “substantial interest in the property and that [its] title is superior” to any of the other parties to this action. (5) Maui Land & Pineapple v. Infiesto, 76 Hawai`i 402, 408, 879 P.2d 507, 513 (1994). The record validates the circuit court’s Conclusion of Law no. 6 that “[Makapono] has . . . paper title to the subject property that is superior to . . . Defendant [July’s] claim.”

Adverse Possession

It is well-established that a person claiming title to real property by adverse possession “must bear the burden of proving by clear and positive proof each element of actual, open, notorious, hostile, continuous, and exclusive possession for the statutory period.” Petran v. Allencastre, 91 Hawai`i 545, 556-57, 985 P.2d 1112, 1123-24 (App. 1999) (quoting Lai v. Kukahiko, 58 Haw. 362, 368-69, 569 P.2d 352, 356 (1977) (citations and brackets omitted)).

Adverse possession requires five elements. It must be [(1)] hostile or adverse; (2) actual; (3) visible, notorious and exclusive; (4) continuous; and (5) under claim of ownership. The party who claims adverse possession has the burden of proving that the foregoing elements have existed for the statutory period of not less than 20 years. In addition, [that party] must prove, by clear and positive evidence the location of the boundaries [that party] claims. Such boundaries must be established at the inception, during the continuance, and at the completion of the period of adverse possession.

Campbell v. Hipawai Corp., 3 Haw. App. 11, 13-14, 639 P.2d 1119, 1120-21 (1982).

The evidence shows that Joseph Duarte acquired the Land by deed dated April 25, 1938, recorded in the Bureau of Conveyances on September 18, 1939, in Liber 1522 at page 341. Thereafter, until the property was conveyed to Makapono in 1999, Joseph Duarte and his family visibly occupied and utilized the Land for cattle ranching, maintaining approximately fifty to eighty heads of cattle on the property. The Land is bounded by a stone wall. The interior of the property is sectioned and divided by stonewalls and fences. In addition, Duarte and his successors paid the real property taxes. No one was allowed to enter or remain on the property without the Duartes’ permission. Neighboring property owners recognized that the Land was the property of Duarte and his family.

The record validates the circuit court’s Conclusion of Law no. 7 that “[Makapono] and their [sic] predecessors-in-interest have possessed the subject property under color of title and have occupied it, adversely, with hostile intent, notoriously, exclusively and continuously since 1938.”

July’s Defenses

July’s claim to title is based on his following argument:

Said real estate TMK 1-5-016:010 in [Makapono’s] complaint is recognized as Crown Lands readily accepted and confirmed by the Great Mahele of 1848 as inalienable and classified “allodial” owned without obligation and has absolute title. As such, the absolute title to lands of the Great Mahele, exists only in the persons mane [sic] and his heirs. The HRS. 172-11 titled “Land Patents on Land Commission Awards: to whom, for whose benefits [sic][” states,] in pertinent part;

“Every land patent issued upon an award by the Board of Commissioners to Quiet Land Titles, shall be in the name of the persons to whom the original award was made, even though these persons are deceased, or the title to the real estate thereby granted has been alienated; and all land patents so issued shall inure to the benefit of the heirs and assigns of the holders of the original award.”

(Emphases in original.)

In other words, July’s argument is that: (1) the Land is a part of the “crown lands” and (2) absolute title to the Land was vested in Kalua and his heirs, in perpetuity, and Kalua and his heirs did not have the legal power to convey the Land. In support of his argument, July cites HRS § 172-11 (1993), which provides as follows:

Every land patent issued upon an award of the board of commissioners to quiet land titles, shall be in the name of the person to whom the original award was made, even though the person is deceased, or the title to the real estate thereby granted has been alienated; and all land patents so issued shall inure to the benefit of the heirs and assigns of the holder of the original award.

July’s argument is without merit. This issue was considered in Brunz v. Smith, 3 Haw. 783 (Hawaii King. 1877). In Brunz, the court considered The Act of 1872, entitled, “An Act to Regulate the Issuing of Royal Patents” (Section 1 of which is identical to HRS § 172-11), and decided that patents based upon award do not confer or confirm title of later holders because the latter’s names do not appear in the original grant of land. Id. at 787. Rather, an award of land through royal patent operates as a quitclaim of interest by the government and other claimants must prove their interest in the land through deed or other means. Id. at 787-88; Mist v. Kawelo, 11 Haw. 587, 589 (Hawai`i Rep. 1898). Hence, titles awarded by Royal Patent may not be vested for “perpetuity,” as July seems to suggest, but rather, all subsequent claimants of land must derive their title from the person to whom the original award was made. Brunz at 787.

July also misapprehends the Land as being a part of the “crown lands” and as being classified as “public lands” under the Great Mahele of 1848. Through the Great Mahele of 1848, King Kamehameha III divided land in Hawai`i into four principal categories: (1) lands held by the King as his private lands, known as “crown lands,” and (2) of the remaining lands, one-third would be granted to the government, one-third to the chiefs, and the remaining one-third to the tenants. State by Kobayashi v. Zimring, 58 Haw. 106, 112-13, 566 P.2d 725, 730 (1977). See alsoApplication of Robinson, 49 Haw. 429, 437-38, 421 P.2d 570, 576 (1966); The Fundamental Law of Hawaii, 3. Any land which was overlooked or not covered in the above categories remained part of the public domain. Thurston v. Bishop, 7 Haw. 421, 428-30 (Hawai`i King. 1888). Portions of the public domain were later sold to purchasers under Grants or Royal Patent Grants. Zimring, 58 Haw. at 114, 566 P.2d at 731. Any applicant claiming title to land or to be the recipient of land under the above categories, excluding the “crown lands,” could petition the Board of Commissioners to Quiet Land Titles (Land Commission) for a Grant or Royal Patent to quiet title to the land. Robinson, 49 Haw. at 432, 421 P.2d at 573; The Fundamental Law of Hawaii, 138. The award of a Land Commission patent conferred legal title over the land to the successful applicant. Robinson, 49 Haw. at 438-39, 421 P.2d at 576; The Fundamental Law of Hawaii, 137-39.

The Land was originally awarded to Kalua under Land Commission Award 7354, Royal Patent Nos. 8032 and 8033. The Land was not a part of the “crown lands” because it was not a portion of the lands which the King held for his private use. Zimring, 58 Haw. at 112-13, 566 P.2d at 730. Rather, the Land was awarded under a valid Land Commission Award, and is more properly characterized as being from one of the other categories established under the Great Mahele of 1848. Id. Since Kalua held legal title to the Land under a valid Land Commission award, he could freely devise or alienate it at his discretion. Id. at 114, 566 P.2d at 731 (“[t]o establish legally cognizable private title to land in the great majority of cases, one must show that he or a predecessor-in-interest acquired a Land Commission Award, a Royal Patent, a Kamehameha Deed, a Grant, a Royal Patent Grant, or other government grant for the land in question”).

Jurisdiction

In contradiction of his request for the venue of the case to be transferred to Honolulu, July questions the jurisdiction of the courts of the State of Hawai`i. However, we follow the Hawai`i Supreme Court’s conclusion that the various constitutions promulgated during the Hawaiian Kingdom were abrogated by the 1894 Constitution of the Republic of Hawaii, which overthrew the then-existing monarchy. State v. Lee, 90 Hawai`i 130, 141-42, 976 P.2d 444, 455-56 (1999). The Hawai`i Supreme Court further noted that “it is clear that the various constitutions of the kingdom do not bind the current government of the state of Hawai`i.” Id. at 142, 976 P.2d 456. As a resident of the State of Hawai`i, July was properly subject to the jurisdiction of the circuit court and subject to the jurisdiction of this court. State v. French, 77 Hawai`i 222, 228, 883 P.2d 644, 650 (App. 1994) (defendant subject to jurisdiction of the circuit court even if citizen of Kingdom of Hawai`i) (citing State v. Lorenzo, 77 Hawai`i 219, 883 P.2d 641 (App. 1994) (defendant failed to meet burden proving that the Kingdom of Hawai`i continued to exist and that State of Hawai`i did not have jurisdiction over him)).

Constitutionality of Article XVI, Section 12
of the Hawai`i State Constitution

In his response to this court’s minute order dispensing with oral arguments in this case, July points to law stating that “[u]pon the demise of an owner of Real Property, said property shall be inhereited [sic] by the owners heirs[,]” and argues that Article XVI, Section 12 of the Hawai`i State Constitution (6) is unconstitutional because it violates that part of the 14th Amendment of the United States Constitution stating that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.” It appears that July fails to recognize that the law he cites applies only “[u]pon the demise of an owner of Real Property,” and it does not apply upon the demise of a person who conveyed his or her real property during his or her life.

July’s Request for Costs, Fees and Other Expenses

July requests the court to grant him costs, fees, and other expenses incurred in “defending his rights.” His request may be construed as a request for fees and expenses and is properly governed by Rule 53(b) of the Hawai`i Rules of Appellate Procedure (2003). (7) That rule permits a “request for fees pursuant to statute or contract[.]” Until July cites a relevant statute or contract, his request will not be considered.

CONCLUSION

Accordingly, we affirm the Final Judgment entered by the circuit court on February 12, 2001, in favor of Plaintiff-Appellee Makapono Partners, LLC.

DATED: Honolulu, Hawai`i, April 14, 2003.

On the briefs:

July Simeona,
Defendant-Appellant, pro se.

Robert D. Triantos and
Edmund W. K. Haitsuka
(Carlsmith Ball LLP)
for Plaintiff-Appellee.

1. A “LLC” is a limited liability company organized under Hawaii Revised Statutes Chapter 428 (Supp. 2002).

2. Hawaii Revised Statutes § 603-36(2) (1993) states, in relevant part, that “[a]ctions . . . to quiet title to . . . real property shall be brought in the circuit in which the real property in question is situated[.]”

3. Article XVI, Section 12 of the Hawai`i State Constitution states, in relevant part, as follows:

No person shall be deprived of title to an estate or interest in real property by another person claiming actual, continuous, hostile, exclusive, open and notorious possession of such lands, except to real property of five acres or less. Such claim may be asserted in good faith by any person not more than once in twenty years.

4. Rule 7(c) of the Rules of Circuit Court (2001) provides, in relevant part, that “[f]ailure to appear at the hearing may be deemed a waiver of objections to the granting of the motion.” Appellants are afforded due process on a motion for summary judgment, if notice was given to appellant(s) and they are given a meaningful opportunity to be heard, but failed to appear at the hearing. Citicorp Mortgage, Inc. v. Bartolome, 94 Hawai`i 422, 436, 16 P.3d 827, 841 (App. 2000).

5. All parties, other than Defendant-Appellant July Simeona, were defaulted out of the action in one manner or another.

6. See footnote 3 above.

7. Hawai`i Rules of Appellate Procedure Rule 53(b) (2003) states, in pertinent part, as follows:

Parties claiming attorney’s fees pursuant to statute or contract may submit requests for the fees no later than 14 days after entry of judgment. A request for fees pursuant to statute or contract shall be submitted in a form that substantially complies with Form 8 in the Appendix of Forms. Objections and replies may be submitted in the manner and within the times provided by Rule 39(d).

Konohiula, Mahu, Kaeole, Kaluekane, Leonui, Kamaikaopa, Hulu, Cooke, Opunui, Kaleiaka, Naki, Hipa, Palafox, Blevins, Sawyer, Molokai

Honolulu Advertiser Classifieds: Legal Notices

June 19, 2009

IN THE CIRCUIT COURT OF THE SECOND CIRCUIT STATE OF HAWAII SUMMONS STATE OF HAWAII TO: DEFENDANTS KONOHIULA; MAHU; KAEOLE; KALUEKANE; IEKE LEONUI aka M. IEKE LEONUI; KAMAIKAOPA; MORENO K. HULU; CLARENCE H. COOKE and LILY L. COOKE; GEORGE P. COOKE and SOPHIE J. COOKE; HAWAIIAN TRUST COMPANY, LIMITED, a Hawaii Corporation; OPUNUI; EDWIN KALEIAKA; KIKA KAUANUI NAKI aka KIKA KAUANUI; ROSALIE ILAE; ROSALIE FRAGAS (nee Rosalie Ilae); ANTONE FRAGAS; LUCY CRANE; DANIEL K. HIPA, JR.; LAWRENCE J. HIPA; FLORENCE K. HIPA; HANNAH K. KAMAI; ALBERT LASUA, JR.; ALBERT K. LAUSA (Curt); MARSHALL LASUA; DAVID BLEVINS; TAMMY BLEVINS; BRIAN A. PALAFOX, TRUSTEE; ANTHONY JAMES SAWYER; PATRICIA L. MOTT; HELEN RAMIREZ; BURRELLE M. AYAU; ESTATE OF ZADOC W. BROWN; ESTATE OF JAMES RICKARD; ROBERT N. RICKARD; ESTATE OF WALTER RICKARD; ESTATE OF WILLIAM RICKARD; ESTATE OF GWENDOLYN R. BOLGER; MARY K.B. BOYD; LOUISE P. KU; CHARLES M. KU; TRENT AYERS; MICHAEL ROBERT KAKESHI; NICOLE BRITTO; DAN BRITTO; ANDREW ROY BRITTO; CHRISTINE KU; CORRINE KU; JAMES ALVA LOUGHMILLER; IRENE KAUAI; FLORAL KEANINI; HOLIDAY KEANINI; DORIS FAY TEDDER; CECIL ROY TEDDER; CHARLES LUANNUI CRANE, JR; LUCY KALIHAU MEYER; ESTER MAE MEYER; JUBY ANN MEYER; WILLIAM JAMES MEYER; JULIA MARGARET MEYER; JULIA BRITTO; WILLIAM HOWARD WISE, III; CLAUDETTE HAUNAI WISE; WILLETTE LEINAOLA WISE; GLADYS WISE; COURTNEY AYERS; ANDERSON KEOLAKI; JOSHUA TWING; CHAVONNE KU; ROBERT ASAM; DIANE RAWLINS TANNA; BENNETT RICKARD; NALANI RICKARD; DARRLYN JUNE DOLAN; PATRICK GEORGE DOLAN; HAROLD LEORY DOLAN; SELMA ALICE DOLAN; SAMUEL XAVIER DOLAN; LUCY ANN LEINALA; LYDIA KAAILAKEA NAKI; JAMES DEAN MAHEALONA CRANE; JAMES CAMPBELL CRANE; LUCILLE HELELANI CRANE; CHARLES HENRY CRANE; MICHAEL ROBERT CRANE; GLADYS LOU CRANE AND JEDIN KAAWAILANI FRAGAS; MARYANN KAHAUNA NAKI; LOUISA PAHANO NAKI; JOSEPH KUIKEAO KAUANUI JR.; ESTER EKEKELA KAUANUI; LILLIAN KAONI KAUANUI; LYDIA KAAILAUKEA NAKI; DAVID KINIMAKLELEO KAUANUI; SAMUEL NALEIHIWAHIWA KAUANUI; THOMAS KAPUALAULANI KAUANUI; FRANK DODO KAUANUI; EMMA NAATHUALAMA NAKI; CHIVROLET KALEILEHUA CRANE; LAURENTINA LOUISA POHANO; ETTA LORAINE BRITTO; JOSEPH KUKEAO KAUANUI JR.; JOSEPH KAUANUI III; PATRICK PAIA KAUANUI; VERA LANCASTER KEA KAUANUI; ROBYANN DARLENE KUULEIALOHA KAUANUI; EMERY KEALIKIKANE KAUANUI; JEDIN KAAWAILANI FRAGAS; NALANI RICKARD; AND BENNETT RICKARD; DOES 1 through 100, and all other persons unknown claiming any right, title, estate, or interests in the subject real property; and TO ALL WHOM IT MAY CONCERN You are hereby notified that Plaintiff has filed a complaint in Civil No. 06-1-0454(1) against you in the above-entitled Court to quiet and confirm the title in fee simple to the following property: A. All of that certain parcel of real property situated at Mapulehu, Molokai, County of Maui, State of Hawaii, comprising an area of 1159.000 acres, more or less, and being designated as Tax Map Key No. (2) 5-7-005-027; and B. All of that parcel of real property situated at Mapulehu, Island of Molokai, County of Maui, State of Hawaii, comprising an area of 665.993 acres, more or less and being designated as Tax Map Key No. (2) 5-7-005-002. YOU ARE HEREBY SUMMONED to appear before the Honorable JOEL E. AUGUST in Courtroom No. 1, Suite 4D, Wailuku, Maui, Hawaii, on Thursday, AUGUST 13, 2009, at 8:15 a.m., or to file an answer or other pleading and serve it before said day upon GORDON W. STEWART, attorney for Plaintiff, whose address is 2041 Main Street, Wailuku, Hawaii 96793. If you fail to do so, judgment by default will be taken against you for the relief demanded in the Complaint. DATE: Wailuku, Maui, Hawaii, June 15, 2009. C. CASIL Clerk of the above-entitled Court (Hon. Adv.: June 19, 26; July 3, 10, 2009) (692638) Updated on 06/19/2009.