SHERRY P. BRODER #1880 Attorney at Law

SHERRY P. BRODER #1880 Attorney at Law A Law Corporation Davies Pacific Center 841 Bishop Street, Suite 800 Honolulu, Hawaii 96813 Telephone No.: (808) 531-1411 Fax No.: (808) 53 I -84 I 1 Email: [email protected]

MELODY K. MacKENZIE #1799 579 Kaneapu Place Kailua, Hawaii 96734 Telephone No.: (808) 262-6301

JONM. VAN DYKE #1896 2515 Dole Street Honolulu, Hawaii 96822 Telephone No.: (808) 956-8509 Fax No.: (808) 956-5569 Email: jvandyke@hawaiLedu

Attorneys for OFFICE OF HAWAIIAN AFF AIRS Defendants

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII

EARL F. ARAKAKI, et aI, ) CIVIL NO. 02-00139 SOM-KSC ) (Declaratory Judgment)

Plaintiffs, ) ) OFFICE OF HA W AlIAN AFFAIRS

vs. ) DEFENDANTS' REPLY MEMORANDUM ) TO PLAINTIFFS' OPPOSITION TO STATE

BENJAMIN J. CAYETANO, et aI.,) DEFENDANTS' AND HHCAlDHHL ) DEFENDANTS' SECOND MOTION TO

Defendants. ) BIFURCATE PROCEEDINGS AND TO OFFICE ) OF HAWAIIAN AFFAIRS DEFENDANTS' ) MOTION TO BIFURCATE PROCEEDINGS ) 'FILED 01/31103; EXHffiIT B; ) CERTIFICATE OF SERVICE ) ) DATE: February 18,2003 ) TIME: 9:45 a.m. ) JUDGE: SUSAN OKI MOLL WA Y

University of Hawaii School of Law Library - Jon Van Dyke Archives Collection

OFFICE OF HAWAIIAN AFFAIRS DEFENDANTS' REPLY MEMORANDUM TO PLAINTIFFS' OPPOSITION TO STATE DEFENDANTS' AND

HHCAlDHHL DEFENDANTS' SECOND MOTION TO BIFURCATE PROCEEDINGS AND TO OFFICE OF HAWAIIAN AFFAIRS

DEFENDANTS' MOTION TO BIFURCATE PROCEEDINGS FILED 01/31/03

The Plaintiffs concede that the case could be divided into a phase for partial summary

judgment motions on the applicability of Morton v. Mancari, 417 U.S. 535 (1974) and a phase for

summary judgment motions on the remaining issues (p. 1). Nevertheless, Plaintiffs still argue that

bifurcation would delay this case without any compensating advantage and that the fairest and most

efficient way to litigate would be to follow F.R.C.P. Rule 56, allowing any party to move for

summary judgment before the deadline for dispositive motions. It is OHA' s position that evidentiary

hearings andlor trials will be necessary in both ph~es.

Predictably, the Plaintiffs complain that the State and OHA make no worthwhile

suggestions, but merely try to mUltiply the number of issues. Plaintiffs are completely wrong. OHA

and the State are following principles enunciated for complex litigation.

The Manual for Complex Litigation encourages courts to "initiate special procedures

at the outset" of complex cases (see 21.12) an4 t() "develop (subject to later revision and refinement)

a'plan for the just, speedy, and inexpensive determination' of the litigation. This plan should include

procedures for identifying and resolving disputed issues of law, identifying and narrowing disputed

issues of fact, carrying out disclosure and conducting discovery in an efficient and economical

manner, and preparing for trial." (See 21.23).

The Memorandum filed by the OHA Defendants in support of their Motion to

Bifurcate offers suggestions consistent with the guidelines in the Manual for Complex Litigation,

and this Reply Memorandum will not repeat the arguments in support of those suggestions. But it

2


,

is necessary to respond to Plaintiffs' arguments regarding the nature of the issues and the discovery

relevant to those issues, as well as their mischaracterization of the recent Ninth Circuit decision in

Arakakiv. State o/Hawaii, 314 F.3d 1091 (9th Cir. 2002). As explained in the ORA Defendants'

Memorandum in Support of their Motion to Bifurcate, the first and primary issue raised by Plaintiffs'

challenges is the level of judicial review that is applicable to the challenged programs. The OHA

Defendants have proposed dividing this case into two phases. Phase One would address the federal

government's trust responsibilities to Native Hawaiians, the nature of the federal government's

delegation of that trust responsibility to the State of Hawai'i, the status of the Native Hawaiian

People as native or indigenous people under u.s. and international law, the legitimate interest of the

Native Hawaiian People in the lands that were ceded to the United States government at the time of

annexation in 1898, and the resulting level of judicial review applicable to the programs challenged

by Plaintiffs. Phase Two, which would be necessary only if this Honorable Court determines that

the strict scrutiny level of judicial review is applicable to these challenges, would determine whether

the programs are narrowly tailored to meet one or more compelling governmental interests.

For the determinations involved in Phase One, the OHA Defendants will be relying

primarily on the decisions made by the United States Congress, which has the responsibility under

Article I, Section 8, Clause 3 to deal with relatio!-1s between the United States and the native people

living in U.S. territory prior to the arrival ofWestemers. In addition to the enactments of the U.S.

Congress, it will also be appropriate for this Honorable Court to examine the relevant principles of

customary international law, because that law is part of U.S. law and must be applied and enforced

in appropriate cases. The Paquete Habana, 175 U.S. 677 (1900). Because the Supreme Court has

noted that "[i]t is a matter of some dispute ... whether Congress may treat the native Hawaiians as it

3


does the Indian tribes," Rice v. Cayetano, 528 U.S. 495, 518 (2000), the OHA Defendants are

obliged to supplement the conclusions of the U.S. Congress and the relevant principles of

international law with documentary and oral testimony of experts on Native Hawaiian history and

culture, in order to establish the factual similarity - for purposes of constitutional analysis - of the

history of Native Hawaiians and their relationship with the United States government to the history

of other Native Americans and their relationships with the United States government. An

evidentiary hearing will thus be required to allow this testimony to be introduced into the record, and

Plaintiffs may wish to engage in discovery related to the witnesses that will be presented by the OHA

Defendants. In addition, depending on the ruling of this Honorable Court on the OHA Defendants

forthcoming motion for judicial notice of Congressional enactments, I the relevant principles of

international and U.S. native-rights law may be introduced through affidavits prepared by one or

more law professors who are experts in these fields. These witnesses will thus also need to be

presented at an evidentiary hearing, and Plaintiffs may desire pre-hearing discovery related to the

testimony of these witnesses.

The OHA Defendants submit that the legal issues described above as constituting

Phase One should all be addressed before any discovery begins related to the issues in Phase Two

- whether the challenge programs are narrowly tailored to achieve compelling governmental interests

- because these issues are separate and complicated, and may not need to be reached, depending on

the Court's conclusions regarding the issues addressed during Phase One. Plaintiffs assert that the

application of any level of judicial review to the programs they challenge will require the

1 The Court entered an Order Denying Defendant OHA's Motion for Judicial Notice on June 10, 2002. Pursuant to that Order, OHA will be filing for judicial notice on particular facts necessary to the case and will discuss the· proposed facts in a detailed way.

4


development of a factual record about how these programs are funded and function, but it should be

clear that the types of information that will be relevant will be dramatically different, depending on

the level of review the Court utilizes. Under rational-basis scrutiny, deference is given to the

government, and narrow tailoring between the goal and means used is not required. The burden on

the government when this "loose-fit" scrutiny is utilized is substantially less than it is when "narrow

tailoring" or "tight-fit" scrutiny is applied. Plaintiffs' position that the same factual evidence would

be relevant under each level of scrutiny is simply wrong. Despite the contentions of the Plaintiffs,

the discovery materials relevant to Phase One are clearly distinct from those that would be relevant

to Phase Two, and it is not necessary to evaluate how the challenged programs function or where the

funds supporting these programs come from in order to address any or all of the issues involved in

Phase One.

The OHA Defendants are obliged to address Plaintiffs' mischaracterization of the

Ninth Circuit's recent ruling in Arakaki v. State, 314 F.3d 1091 (9th Cir. 2002). Plaintiffs claim that

this decision supports its views on the applicability of strict-scrutiny review under the Fourteenth

Amendment to the programs it challenges. But it is hard to square this optimistic perspective with

Plaintiffs' pending request for a panel rehearing, which must more accurately reflects their

disappointment with the Ninth Circuit's Arakaki opinion and requests that the Court reverse its

ruling on the Fourteenth Amendment (see Exhibit B). In fact, the Ninth Circuit explicitly reversed

the District Court's decision regarding the Ninth Circuit. The applicable standard under the

Fourteenth Amendment thus r~mains very much an open questions,just as it was left open by the

U.S. Supreme Court in Rice v. Cayetano, which characterized this issue as "difficult terrain" it

wanted to steer clear of. 528 U.S. at 519.· .

5


OHA's proposal of two phases is similar to the procedure followed by the District

Court in Mille Lacs Band o/Chiuppewa Indians v. Minnesota, 861 F. Supp. 784 (D. Minn. 1994)

(Mille Lacs II), cert. granted, Minne~ota v. Mille Lacs Band o/Chippewa Indians, 526 U.S. 172

(1999). For a description of the procedural and history and two phase of the litigation at the District

Court, see the Petitioner's Brief (State of Minnesota) at 1998 WL464932 at pp. 12-14. This case was

filed in 1990 and involved a.dispute between the State of Minnesota and eight Chippewa Bands

located in Minnesota and Wisconsin over the State's authority to regulate the harvest of fish and

game. The dispute arose from the Bands' assertion that hunting and fishing privileges were reserved

in the Treaty of 1837 and continued to exist and the State's authority to regulate those activities by

Band members within the ceded territory was severely limited.

In 1993, nine counti~s and six private landowners intervened as defendants, and the

United States intervened as a plaintiff. At the same time the Mille Lac case was proceeding, the

State of Minnesota was also involved in a similar lawsuit involving the 1837 Treaty with the Fond

du Lac Band.

The District Court divided the Mille Lacs case into two phases--the first to address

whether the 1837 pri,vilege still existed,' and its general nature, and the second to address the

allocation of fish and game resources as well as the validity of particular State regulation of any

continuing treaty r~ght. Phase I concluded when the court ruled that the Mille Lacs Band had a

continuing privilege under the 1837 Treaty to hunt, fish and gather. It also ruled that the privilege

applied only on public lands or those private lands that were open to the general public for hunting.

In 1996, the District Court consolidated the Phase II portions of the Mille Lacs and

Fond du Lac cases. In 1997, the District Court resolved pending motions on disputes regarding

6


management of the resources within the Ceded Territory. The case was appealed.

For these reasons, and those offered in the OHA Defendants' Memorandum in

Support of their Motion to Bifurc~te,. the OHA Defendants respectfully request this Honorable Court

to separate the issues involved in the present litigation into the tWb Phases described above and to

limit discovery to the issues included in Phase One until the Court has reached its conclusions

regarding those issues.

DATED: Honolulu, Hawaii, _--=-~ __ ~_--A~1-f/_7."u~_g _______ ,

7

SHERR P. BRODER JON M. VAN DYKE MELODY K. MacKENZIE Attorneys for OHA Defendants


TABLE OF CONTENTS

PAGE

I. BIFURCATION WOULD CAUSE NEEDLESS DELAY AND COMPLICATIONS .................................................... 2

A. Applicable Standard ........................................................................................... 2

B. Bifurcation Would Make this Action Slower and More Expensive ................... 3

/" \ II.' STRICT SCRUTINY IS THE APPROPRIATE STANDARD '. AS A MATTER OF LAW, WHICH THE COURT CAN SETTLE , BY DECIDING A SINGLE SUMMARY JUDGMENT MOTION ....................... 5

4-. Rice Establishes that "Hawaiian" and "native Hawaiian" are Racial Classes ... 6

B.' . Croson, Adarand and Rice Establish that Governmental Use of Any Racial Class Triggers Strict Scrutiny ....................... 8

1. There is No "Indian" or "Indigenous Peoples" Exception to Strict Scrutiny .................................................................... 8

a. Mancari is Not an Exception to the Rule of Strict Scrutiny for Racial Classes ............................ 9

b. Rice Rejected any Analogy Between OHA and the BIA .......... ll c. Rice Limits Mancari to Political

Classes and Distinguishes Racial Classes ................................ 11

2. Hawaiians and native Hawaiians Are Not Federally Recognized Indian Tribes .............................................. 14

a. They are Not on the BIA List. ............... : .................................. .14 b. They Do Not Qualify as Tribes Under the BIA Regulations .... 16 c. They Have Not Been Recognized by Congress ........................ 17

C. OHA and DHHL Cannot Survive Strict Scrutiny ............................................ 19

III. CONCLUSION ...................................................................................................... 22


TABLE OF AUTHORITIES

CASES PAGES

Adarand Constructors Inc. v. Pena, 515 U.S. 200 (1995) ............................. 8, 9, 10, 14, 18, 19, 20 Alexander v. Louisiana, 405 U.S. 625 (1972) ................................................................................ 19 American Federation of Government Employees (AFL-CIO) v. United States,

2002 WL 522910 (D.C. D.C.) ............................................................................................ 11 Arakaki v. State ofHawai'i, Civil No. 00-00514HG-BMK (D. Haw. 2000) .............................. 6, 8 Alaska Chapter Associated General Contractors of America, Inc. v. Pierce,

694F.2d 1162 (9th Cir. 1982) ............................................................................................ 15 Babbitt v. Youpee, 519 U.S. 234 (1997) ........................................................................................ 13 Bolling v. Sharpe, 347 U.S. 497 (1954) ........................................................................................ .18 Brown v. Board of Education, 347 U.S. 483 (1954) ...................................................................... 18 City of Richmond v. J.A. Croson, 488 U.S. 469 (1989) ........................... 8, 9, 14, 15, 18, 19,20,21 Commonwealth of Pennsylvania v. Board of Directors of City Trusts,

353 U.S. 230 (1957) ..................................................................................................... 19,20 Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163 (1989) .............................................. .12, 13 Fullilove v. Klutznick, 448 U.S. 448 (1980) .................................................................................. 20 Han v. Department of Justice, 824 F.Supp. 1480 (D. Haw. 1993),

affd 45 F .3d 333 (9th Cir. 1995) ....................................................................................... 20 Hodel v. Irving, 481 U.S. 704 (1987) ........................................................................................... .12 In re Santos Y., 112 Cal. Rptr. 2d 692,92 Cal.App. 4th 1274 (2001) ............................................ 11 Keaukaha-Panaewa Community Association v. Hawaiian Homes Commission,20

588 F.2d 1216, 1224 (9th Cir. 1978) ................................................................................. 20 Kornhass Construction Inc. v. Oklahoma, 140 F.Supp.2d 1232 (W.D. Okla. 2001) .................... 11 LaPier v. McCormick, 986 F.2d 303 (9th Cir. 1993) ...................................................................... 15 Lopez v.u. S., 514 U.S. 549 (1995) ................................................................................................ 12 Loving v. Virginia, 388 U.S. 1 (1967) ....................................................................................... .4, 19 Miller v. Johnson, 515 U.S. 900 (1995) ......................................................................................... 19 Morton v. Mancari, 417 U.S. 535 (1974) ...................................................... ........................ passim Nixon v. Condon, 286 U.S. 73 (1932) .............................................................................................. 8 Nixon v. Herndon, 273 U.S. 536 (1927) .......................................................................................... 8 Price v. State ofHawai'i, 764 F.2d 626 ......................................................................................... 16 Rice v. Cayetano, 528 U.S. 495 (2000) .................................................................................. passim Saenz v. Roe, 526 U.S. 489 (1999) .......................................................................................... 12, 18 Smith v. Allwright, 321 US. 649 (1944) ........................................................................................... 8 Terry v. Adams, 345 U.S. 461 (1953) .............................................................................................. 8 U.S. v. Antelope, 430 U.S. 641 (1977J ........................................................................................... 13 Williams v. Babbitt, 115 F.3d 657 (9 Cir. 1997) .................................................................... 10, 14

ii


UNITED STATES CONSTITUTION

Fifth Amendment ..................................................................................................................... 12, 13 Fourteenth Amendment ........................................................................................................... 6, 7, 8 Fifteenth Amendment ........................................................................................................ 6, 7, 8, 12 Commerce Clause, Art. I., §8, clause 3 ................................................................................... 12, 13

FEDERAL STATUTES

25 U.S.C ......................................................................................................................................... 13 § 479a ................................................................................................................................. 16 § 479a-l ............................................................................................................................. 14

An Act to Provide for the Admission of the State ofHawai'i into the Union, Act of March 18, 1959 Pub. L. 86-3, 73 StatA .................................................................. 20

FEDERAL REGULATIONS

24 C.F.R. 805.102 .......................................................................................................................... 15 25 C.F.R.

§ 83.1 .................................................................................................................................. 16 § 83.7 .................................................................................................................................. 16

HAWAI'I CONSTITUTION

Art. XII § 5 ..................................................................................................................................... 21 Art. XII §6 ...................................................................................................................................... 21

HAWAI'I STATUTES

HRS § 10-1 .................................................................................................................................... 21 HRS § 10-2 .................................................................................................................................. 6, 7 HRS § 10-3 .................................................................................................................................... 21 HRS § 10-5 .................................................................................................................................... 21 HRS § 10-16 .................................................................................................................................. 21 HRS § 11-1 ................................................................................................................................... 6,7 Hawaiian Homes Commission Act, 1920 ................................................................................ 6, 7,4

§ 101 ................................................................................................................................... 21 § 201(a)(7) ........................................................................................................................... 7

111


OTHER AUTHORITIES

47 Fed. Reg. 53130 (November 24, 1982) ..................................................................................... 15 47 Fed. Reg. 53134 (November 24, 1982) ..................................................................................... 15 47 Fed. Reg. 53135 (November 24, 1982) ..................................................................................... 15 58 Fed. Reg. 54364 (Oct. 21, 1993) ............................................................................................... 15 65 Fed. Reg. 13298 (March 13, 2000) ........................................................................................... 14 Brief for the Hawai'i Congressional Delegation, 1999 WL 557289 ............................................ .17 Brief for OHA (Amicus) in Rice v. Cayetano 1999 WL 557287 .................................. 6, 10, 11, 17 Brief for State Respondents in Rice v. Cayetano, 1999 WL 557073 ............................. 6, 10, 14, 17 Van Dyke, The Political Status of the Native Hawaiian People,

17 YALE LAW & POLICY REVIEW 95 (1998) ...................................................................... 17

iv


PLAINTIFFS' OPPOSITION TO STATE DEFENDANTS ' AND HHCAlDHHL DEFENDANTS ' SECOND MOTION TO BIFURCATE

PROCEEDINGS AND TO OFFICE OF HAWAIIAN AFFAIRS DEFENDANTS' MOTION TO BIFURCATE PROCEEDINGS

I. INTRODUCTION

Bifurcation - let alone "trifurcation" or "octofurcation" as Defendants

propose - would needlessly delay this case without any compensating

advantage. The fairest and most efficient way to litigate this case would be

to follow F.R.Civ.P. Rule 56, allowing any party to move for summary

judgment before a deadline for dispositive motions. F.R.Civ.P. 56(a) and (b)

(claimant can file summary judgment motions "at any time after the

expiration of 20 days from the commencement of the case" and defending

party can do so "at any time"( At most, the summary judgment stage of this

case should be divided into a phase for partial summary judgment motions

on the applicability of Morton v. Mancari, 417 U.S. 535 (1974), and a phase

for summary judgment motions on the remaining issues. -- _ .. - . ---'- - --- -. ------~

Whether the sunmlary judgment phase is bifurcated or not, the paliies

should be allowed to pursue discovery about all issues. More resources

would be wasted in metaphysical disputes over which factual issues fall into

which phase of this case than would be saved by phasing discovery.


Plaintiffs file this opposition to both the Motion to Bifurcate filed by

the State Defendants' and HHCAlDHHL Defendants (collectively "State"),

filed October 31, 2002, and to the Motion to Bifurcate filed by Office of

Hawaiian Affairs Defendants ("OHA") on the same day.

II. BACKGROUND

Plaintiffs filed this suit on March 4,2002. The State filed its first

Motion to Bifurcate ("First Motion") on June 28, 2002. It asked this Court

to bifurcate this case so that "the Mancari defense is considered first, and the

CrosonlAdarand issues considered if and only if the Mancari defense is

rejected." ORA and Defendants-Intervenors State Council of Hawaiian

Homestead Associations and its president Anthony Sang, Sr., (collectively,

"SCHAA" joined in the motion.

This Court denied the First Motion on August 20, 2002 but gave the

Defendants leave to file a new motion for bifurcation by October 31 and

barred the filing of any dispositive motions before this Court rules on a new

motion to bifurcate. Order Denying Motion to Bifurcate. This Court

instructed the Defendants to use the time before filing their second

bifurcation motion to "determine their strategy, choose which defenses they

intend to pursue in this action, and conduct any discovery necessary to their

motion for bifurcation."

2


However, since that Order, Defendants have conducted no discovery.

If they have determined their strategy and defenses, they have resisted all of

Plaintiffs' attempts to discover anything about that strategy and those

defenses. Other than filing their second motions for bifurcation on the last

possible day, October 31, and resisting discovery by Plaintiffs, Defendants

have done nothing.

To avoid delay, on August 25,2002, Plaintiffs counsel wrote to all

Defendants' attorneys, ~ffering to stipulate to a bifurcation as requested in

the State ' s First Motion. None of the Defendants replied. On September 5,

2002, by letter to this Couti and copies to all counsel, Plaintiffs asked for a

status conference and offered to agree to the State's proposal to first allow

partial summary judgment motions "limited to the issue of Mancari's

applicability or non-applicability to the laws challenged in this action

(thereby achieving the bifurcation the State sought in its motion to

bifurcate)" Letter from Plaintiffs' counsel to Judge Mollway, Sept. 5,2002.

However, the State rejected the very proposal they initially made and that

they make again in their present motion. Letter from State's counsel to

Judge Mollway Sept. 5,2002. OHA, too, refused to take "yes" for an

answer. At a telephone conference on September 5, this Court decided to

adhere to the schedule allowing a second motion for bifurcation by

3


October 31 and asked the parties to advise the Court on the best way to

structure this case.

On October 28,2002, Plaintiffs wrote via fax to all counsel asking

their decisions on which defenses Defendants intend to pursue (as the Court

had directed on August 20,2002) and offering to consider any reasonable

bifurcation or scheduling proposals which would "secure the just, speedy,

and inexpensive determination of this action." None of the Defendants

replied.

The State filed its second Motion for Bifurcation on October 31, 2002.

OHA filed its own motion for bifurcation the same day. The hearing

scheduled for January 13,2003 was rescheduled to February 18,2003, due

to a conflict with oral arguments of related cases in the Ninth Circuit.

Because of the pending motions to bifurcate, the Magistrate Judge has

been unable to issue a scheduling order under Rule 16, and no date has been

set for the initial disclosures of the parties under Rule 26(a).1

Defendants' new motions to bifurcate multiply the number of phases,

divide the phases into smaller segments, and add built-in delays.

1 Under the amended Rule 26, and amended Local Rules, the initial disclosure by the parties is automatic and mandatory within 14 days after the Rule 26(f) conference (which occurred in mid-May 2002). However, because this case was filed before the effective date of those changes, the disclosures will not occur until the Court sets a schedule.

4


Instead of two phases, the State now proposes three: (1) a partial

summary judgment motion regarding whether this Court has the

constitutional power to review Congress' alleged exercise of its plenary

power over federal property; (2) a partial summary judgment motion

regarding the applicability of Mancari to state agencies (whose sole purpose

it to benefit discrete racial groups); and (3) application of the appropriate

law to the facts of the case.

OHA goes further, proposing to "octofurcate" this case into no less

than eight phases. OHA Memo at 4, 12, 14. It proposes five separate partial

summary judgment motions, to be considered seriatim, regarding: (1) the

scope of alleged federal trust responsibility to Hawaiians and delegation of

that responsibility to the State; (2) international law; (3) the interests of the

class of Hawaiians in ceded lands; (4) the status of native Hawaiians; and (5)

the constitutional standard of review. In addition, OHA proposes to repeat

two motions that this Court has already denied: (6) its motion to dismiss on

political question grounds; and (7) its motion for judicial notice asking this

Court to assume as facts various statements made in preambles to certain

federal statutes. Finally, if and when all these hurdles are surmounted, OHA

proposes that this Court should consider: (8) one or more summary

judgment motions concerning application of the constitutional standard of

5


review to the facts. Discovery, too, would be carved into eight separate

phases, with each factual issue somehow assigned to one phase and closed to

examination in all other phases.

Defendants have invented a new variation on Zeno' s Paradox of the

Racecourse. Zeno argued that a runner can never reach the end of the race

course because he must first get to the half-way mark; and to do that he must

get to the quarter-way mark; and to do that he must get to the eighth-mark

and so on ad infinitum, until he cannot move at all. Defendants'

multiplication of procedural divisions and subdivisions would immobilize

this case like Zeno's paradox-bound runner. The parties and this Court

would be caught up in ever-smaller quibbles over what issues can be decided

and what can be discovered, while the end of the case vanishes into the

apparently infinite distance. Such delay is attractive only to parties that fear

the outcome if this case runs its course.

III. ANALYSIS

Plaintiffs will address the issues that this Court, in the August 20,

2002 Order denying the State's first Motion to Bifurcate, asked the parties to

address.

6


A. Standard for Bifurcation: Facilitating Just, Speedy and Inexpensive Disposition of the Action.

The issue before this Court is the proper design of a pretrial

scheduling and management order for this case pursuant to F.R.Civ.P.

Rule 16. Under F.R.Civ.P. 16(a)(I) and (3), this Court has discretion to

issue pretrial orders for "expediting the disposition of the action" and

"discouraging wasteful pretrial activities" and under Rule 16(c)(16) to take

appropriate action with respect to "such other matters as may facilitate the

just, speedy and inexpensive disposition of the action." The overarching

principle of the Federal Rules is expressed in Rule 1: the rules "shall be

construed and administered to secure the just, speedy, and inexpensive

determination of every action."

Neither the State nor OHA has moved to bifurcate the trial of this

case. They only seek to subdivide pre-trial proceedings, in particular the

summary judgment phase and discovery. After all their proposed stages of

discovery and partial summary judgment motions have been completed, the

State anticipates that this case will be decided either by a final summary

judgment motion or by a single trial of the remaining genuine issues of

material fact. State 2d Motion Memo, 6-7. So does OHA. OHA Memo

at 14. Yet the State only cites F.R.Civ.P. Rule 16(c)(13) and Rule 42(b),

both relating to bifurcation of trials. The cases that the State and OHA cite

7


generally are cases discussing bifurcation of the trial under Rule 42(b).

Exxon Company v. So/ec, Inc., 54 F.3d 570,575-76 (9th Cir. 1995), affd 517

U.S. 830 (1996); Danjaq LLC v. Sony Corp., 263 F.3d 942, 961-62 (9th Cir.

2001); Zivkovic v. Southern California Edison, 302 F .3d 1080, 1088-89 (9th

Cir. 2002); Hirst v. Gertzen, 676 F.2d 1252, 1261-62 (9th Cir. 1982).

Rule 42(b) and cases decided under that rule are inapposite because they

relate to bifurcation of the trial.

B. There Should be One Motion for Summary Judgment, or, in the Alternative, One Motion for Partial Summary Judgment on the Applicability of Mancari and One Motion for Summary Judgment on the Application of that Standard.

Under F.R.Civ.P. 16(c)(1) one of the purposes ofa pretrial conference

(and the order that comes out of that conference) is "the formulation and

simplification of the issues." The issues in this case can be formulated in a

reasonably simple way. In tum, that formulation suggests a reasonably

simple structure for this case that avoids unnecessary multiplication of parts.

The essential issue in this case is whether the DHHL and OHA laws

violate the Equal Protection Clause of the Fourteenth Amendment? As in

any equal protection case, the Court must decide the applicable law and

2 Plaintiffs understand that under this Court's rulings on the Plaintiffs' standing, the Court will consider only challenges to expenditures of taxpayer revenues from the General Fund.

8


apply that law to the particular facts of the challenged programs, and decide

whether the programs fall below the requirements of the Constitution.

The parties disagree about the proper standard of constitutional

scrutiny but they have agreed that the question is one of law. Plaintiffs

maintain that, as a matter of law, Mancari cannot save the State's racial

discrimination. The U.S. Supreme Court held, both in Mancari and Rice that

Mancari applies only to the B.I.A., a sui generis (i.e., unique, one-of-a

kind) federal agency. Rice at 120 S.Ct. 1058. It does not apply to an "arm

of the State." "The elections for OHA trustee are elections of the State, not

of a separate quasi-sovereign, and they are elections to which the Fifteenth

Amendment applies." Rice at 120 S.Ct. 1059. The court also noted the

importance that the B.LA. 's hiring and promotion preference was "granted

to Indians not as a discrete racial group, but, rather, as members of quasi

sovereign tribal entities whose lives and activities are governed by the B.I.A.

in a unique fashion." Id at 1058. Both OHA and DHHL are State agencies

to which the Fourteenth Amendment expressly applies. Both rest on

definitions which describe discrete racial groups, Hawaiians and native

Hawaiians. Inclusion in those discrete groups requires only the favored

ancestry (a proxy for race), not membership in any quasi-sovereign.

9


The challenged programs spend taxpayer revenue to favor members of

the racial classifications "Hawaiian" and "native Hawaiian" and discriminate

against everyone else. See Rice v. Cayetano, 528 U.S. 495, 514-517 (2000)

("Hawaiian" and "native Hawaiian" are racial classes used for racial

purposes); Arakaki v. State ofHawai'i, 314 F.3d 1091 (9th Cir. 2002)

(attached as Exhibit A). The Defendants have contended that, as a matter of

law, Hawaiians and native Hawaiians are just like Indian tribes, so that the

proper standard is established in Mancari.

The parties have already briefed this issue in prior pleadings in this

and related cases. Because both sides have agreed that the question of the

legal standard of constitutional scrutiny is a question of law, it should be

possible to resolve it on cross-motions for summary judgment.

After this Court determines the applicable law, the Court will apply

the standard to the challenged programs. No one disagrees with that. State

2d Motion Memo 6; OHA Memo 14.

This is a controversial case but not a particularly complex case. There

is no good reason to depart from the usual practice of determining the law

and applying it to the undisputed facts in a single summary judgment

motion. Following the standard procedure has the advantage of allowing

each party to build its case in a single phase of discovery, without quibbling

10


over which facts can be explored during which phases. Using a single set of

cross-motions for summary judgment will allow this Court to see each party

put its best, most coherent legal case forward and compare it to the

arguments presented by the other parties. Following Rule 56 and Local

Rule 56.1, each side would submit a concise statement of facts it believes are

undisputed and the other side would respond to that statement. That would

clarify what facts, if any, are genuinely disputed. Plaintiffs believe that they

can show that, as a matter of law, Mancari does not apply to these two State

agencies; strict scrutiny is the appropriate constitutional standard; the State

has not and cannot carry its burden of proving the programs are required by

any compelling state interest; or that, the programs are narrowly tailored as

required by strict scrutiny.

If this Court finds that there are triable issues of fact, the trial will be

limited to those remaining factual issues. The State and OHA have proposed

that if a trial is needed at all, there should be one trial of all remaining

genuine material issues of fact. Plaintiffs agree. Plaintiffs add that, just as

there is no need to subdivide the triable issues among multiple trials, there is

no need to subdivide the issues among multiple summary judgment motions.

In the alternative, if this Court concludes that a just, speedy and

inexpensive disposition of this case would be facilitated by separately

11


determining the applicability of Mancari and then applying the appropriate

law to allegedly undisputed facts, then two sets of cross-motions would

suffice. In the first set of partial summary judgment motions, the parties

would describe the programs and funding and present their arguments as to

why these programs trigger a certain standard of scrutiny. After this Court

issues an order determining the proper constitutional standard, the parties

would file cross-motions for summary judgment advancing their arguments

as to why that standard is or is not satisfied.

Thus, at most two exchanges of summary judgment motions will

suffice. There is no need to further delay and divide the pre-trial phase of

this case into three sub-phases, as the State proposes, let alone eight sub-

phases, as OHA suggests.

c. The Effects of Bifurcation Would be Delay and Waste of Resources on Discovery Disputes and Other Pre-Trial Issues.

The more that the pre-trial phase of this case is divided into sub-

phases, the more delay there will be and the more resources will be diverted

to disputes about the scope of discovery and other "boundary" issues in each

part of the case. From the point of view of parties that prefer the status quo

and can afford to retain as many lawyers as they need to fight a war of

12


attrition, this could look like an advantage. However, it would not promote

the "just, speedy and inexpensive" resolution of the case.

The State proposes a bifurcation plan that would restrict all discovery

and other pretrial issues in the first phase to what it regards as the "Mancari

doctrine" issues. State 2d Motion at 7. OHA would extend that strategy to

limit discovery at each of its eight phases to factual issues that it believes are

really relevant to that phase. For instance, until the last phase, all discovery

would be barred "regarding whether the government has a compelling

interest and has utilized the least onerous alternative." OHA Memo at 4.

Following this approach, Defendants would refuse to answer every question

that they could characterize as relating to a compelling state interest or to the

tailoring of the programs to meet state interests. One might think that a state

agency would have no trouble answering a question about the interests it is

supposed to be serving, but the State and OHA have invoked the State's

Motion to Bifurcate as grounds to object to discovery about its allegedly

compelling governmental interests. State and HHCAlDHHL Defendants'

Response to Plaintiffs' First Request to State Defendants, OHA Defendants,

HHCAlDHHL Defendants, and Defendant-Intervenors for Production of

Documents and Things, responses 9 and 10, filed July 11,2002; OHA

Response to the same Requests, filed July 18, 2002.

13


Trying to limit discovery to issues uniquely relevant to each of the

multiple proposed motions would provoke a series of discovery battles over

which stage of the case a discovery request "really" relates to. These fights

would waste the Court's time and the parties' resources. Wasteful attempts

to fit each discovery issue into a single "phase" of the case would be

multiplied as the number of phases is multiplied.

It is impossible to separate distinct "Mancari" factual issues from

"CrosonIAdarand" factual issues. Both the strict scrutiny and rational fit

tests come down to the same two questions: (1) Does the State have an

interest that meets the constitutional test? (2) Is the program sufficiently

tailored to that interest? The relevant facts are the same under either test.

The only difference is that the strict scrutiny standard is higher than the

rational scrutiny standard.

Several examples illustrate the point that the same facts are relevant

under both strict scrutiny and Mancari. Whatever the appropriate standard

of review, this Court needs to understand how these programs operate.

Given this Court's rulings restricting standing to expenditures of state

taxpayer revenues from the General Fund, the Court needs to understand the

sources of revenue for the challenged programs. Defendants have argued

that the alleged trust responsibilities of the State both justify treating

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1 Hawaiians and native Hawaiians like Indians and, if strict scrutiny applies,

J.w

provide a compelling state interest (an "Adarand issue"). Defendants have " -1 rPi O. )

lrJ'J.. argued that the role of the federal government is relevant to whether the

Mancari standard applies and also argued that meeting federally imposed

requirements amounts to a compelling state interest. These positions make

the factual role of the federal government relevant to both issues. The issue

of whether "Hawaiian" and "native Hawaiian" are racial classes is relevant

to both whether the standard of review is strict scrutiny (a "Mancari issue"),

and to whether the promotion of the interests of those classes is even a

legitimate interest. See Loving v, Virginia, 388 U.S. 1, 10-11 (1967), (state

has no legitimate concern in promoting racial interests), The State argues

that Hawaiians have "unique and special needs" (State 2d Motion at 2), that

amount to a state interest that justifies singling them out for privileged

treatment not accorded to their fellow citizens; to make this argument, the

State will have to put on evidence of such needs, whatever the applicable

constitutional standard. Similarly, OHA's overlapping motions about the

status of Hawaiians will raise the same factual issues repeatedly,

Moreover, Plaintiffs will have to do discovery on the factual issues as

they relate to both the applicability of Mancari and the application of the

proper constitutional standard. For instance, OHA's proposed partial

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summary judgment motions could also be restated as claims in the

"application" phase that OHA's programs are narrowly tailored to meet

compelling state interests in (1) meeting federally imposed trust obligations;

(2) meeting obligations under intemationallaw; (3) in protecting special

Hawaiian property interests in Hawai' i's public lands; and (4) in giving

Hawaiians equal status to other allegedly "indigenous peoples." Thus,

discovery relating to every factual issue concerning these motions falls

within both the "Mancari" v. strict scrutiny phase and the "application of the

standard" phase.

Insofar as these are factual issues, the parties will have to offer the

Court their respective views of the facts, regardless of the constitutional

standard. The same evidence will have to be introduced about how the

programs work and are funded. The same evidence will be relevant

regarding the role of the federal government and state trust responsibilities

(insofar as those claims are factual at all). The same discovery will be

needed.

Contrary to OHA's argument, these discovery disputes would not be

avoided by further negotiations over stipulating historical facts . The parties

have already negotiated at great length, agreed on some points and reached

impasse on others. Indeed, Plaintiffs counsel, the State's counsel, and one of

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OHA's attorneys agreed on generally accepted historical facts, such as that

the ancestors of present-day Hawaiians came here from elsewhere, only to

have OHA's general counsel reject these points at the last minute. Plaintiffs

are certainly willing to discuss with opposing counsel additions to the

stipulated facts. However, it is unlikely that the stipulation can be

significantly augmented.

In short, the effect of bifurcation on discovery, motions, and other

pretrial issues will be delay and wasted resources, and these costs will

multiply if the case is further divided. For these reasons, if this Court does

decide to have separate motions regarding the proper standard and the

application of that standard, discovery should not be similarly limited and

subdivided.

D. The Necessity of Deciding the Issues Sought to be Separated: Necessary and Unnecessary Issues

The basic issue in this case is whether there is a violation of the Equal

Protection Clause. This implies certain necessary issues: the determination

of whether Mancari or strict scrutiny applies; the weight of the State's

asserted interests; and the closeness of fit between those interests and the

challenged programs. Other issues suggested by the State and OHA can

either be subsumed into this constitutional analysis as subsidiary issues that

do not need separate motions, or can be dismissed as unnecessary.

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1. Level of Constitutional Scrutiny

As discussed above, to decide the equal protection issue, this Comi

will need to decide the appropriate level of scrutiny. The choice between

strict scrutiny and the Mancari test is an important but not terribly complex

legal issue. Plaintiffs will not address those issues here except to note that

the Ninth Circuit's recent decision in Arakaki v. State of Hawai'i ,

314 F.3d 1091 (9th Cir. 2002), has made the question easier.

The Ninth Circuit affirmed this Court's decision striking down the

racial exclusion on running for the office ofOHA trustee. The court's

opinion refutes the State' s argument that Rice did not determine that the

definitions of Hawaiian and native Hawaiian are racial classifications.

State's First Motion 5. The Ninth Circuit characterized the "holdings of

Rice" as "(1) OHA is an 'arm of the State' ; (2) trustee elections are

' elections of the State' in which all citizens should have an equal voting

interests, ... and (3) the Hawaiian ancestry requirement is race-based." Slip

op. at 10 (citations omitted). The Circuit Court also found a violation of

§ 2 of the Voting Rights Act, 42 U.S.C. § 1973, after saying that "in order to

make out a § 2 claim against Hawai'i , Arakaki must establish that the

Hawaiian ancestry requirement results in discrimination on account race or

color." Slip op. at II (internal brackets by Ninth Circuit omitted). A racial

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class under the Fifteenth Amendment and the Voting Rights Act (which

enforces the constitutional guarantees of the FOUlieenth and Fifteenth

Amendments) is a racial class under the Fourteenth Amendment as well.

See Terry v. Adams, 345 U.S. 461 (1953) (15 th Amendment); Smith v.

Allwright, 321 US. 649 (1944) (15th Amendment); Nixon v. Condon, 286

U.S. 73 (1932) (14th Amendment); Nixon v. Herndon, 273 U.S. 536 (1927)

(14th Amendment). The use of racial classes triggers strict scrutiny. City of

Richmond v. Croson, 488 U.S. 469, 483-84, 494, 506 (1989) (strict scrutiny

for all racial classes, including Indians, Eskimos and Aleuts); Adm'and

Constructors Inc. v. Pena, 515 U.S. 200, 205-206, 210 (1995). While the

Ninth Circuit decided that it did not need to reach the Fourteenth / Amendment issues, slip op. at 13, n. 8, the implication of its opinion in

Arakaki is that use of the racial classifications "Hawaiian" or "native

Hawaiian" triggers strict scrutiny in Fourteenth Amendment cases.

2. Weight of Governmental Interests

Whatever the constitutional standard, the State's asserted interests are

the same. For instance, if the State claims an interest in promoting self-

government for Hawaiians as a discrete class, that claimed interest is the

same whether the standard it must meet is strict scrutiny or rational scrutiny

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or something else. The difference is in the weight or importance that the

State must demonstrate: a compelling interest or a legitimate interest.

The State' s interests may be matters oflaw because they are asserted

in state law. See Rice v. Cayetano , 528 U.S. 495 , 515 (2000) (holding as 7

matter of law that object of OHA statutes and Hawaiian Homes Commission

Act is to single out Hawaiians as "a distinct people") . The weight accorded a

particular asserted governmental interest is largely a matter oflaw. For

instance, racial discrimination itself is not even a legitimate interest.

Loving v. Virginia , 388 U.S. 9-12 (1967).

3. Tightness of Fit

Similarly, in considering the tightness of the connection between the

challenged programs and the govenm1ental interests, this Court will need to

consider the possible alternatives to the challenged programs. This is true -::....---------------

{Jo regardless of the constitutional standard but the closeness of the required fit ------------ ---- . is greater for the "narrow tailoring" element of strict scrutiny than it is for a

program that is " tied rationally to the fulfillment of Congress' unique

obligation toward the Indians" under Mancari, 417 U.S. at 555 .

Hawai ' i's use of racial classifications makes narrow tailoring the

appropriate test. A governmental program is "narrowly tailored" only when

the government can meet the heavy burden of showing that the use of a

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racial classification is a "last resort." Croson, 488 U.S. at 519 (Kennedy, J.).

The State must show that it has attempted or considered alternative, race-

neutral means but has determined that they cannot succeed. Croson, 488

U.S. at 507. The chosen racial classification must minimize any

encroachment on the constitutional rights of other citizens. Id., 488 U.S. at

510-11. The government must maintain "the most exact connection between

justification and classification." Adarand, 515 U.S. at 236. A program that

takes race into account must be "limited such that it "will not last longer

than the discriminatory effects it is designed to eliminate." Id., quoting

Fullilove v. Klutznick, 448 U.S. 448, 513 (1980).

4. Historical and Sociological Analysis of Past Societal Discrimination

One issue that it will not be necessary to decide is whether "numerous

highly complicated issues of historical fact and sociological analysis" can

justify the challenged programs under a strict scrutiny standard. State's 1 st

Motion 7; State's 2d Motion 9. In City of Richmond v. J.A. Croson Co., 488

U.S. 469 (1989), the Supreme Court eliminated that issue: "To accept

Richmond's claim that past societal discrimination alone can serve as the

basis for rigid racial preferences would be to open the door to competing

claims for 'remedial relief for every disadvantaged group." 488 U.S. at

499. If 250 years of slavery followed by a century of Jim Crow cannot

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justify a racial quota, then a fortiori, a "sociological analysis" of the alleged

effects of the Mahele or the overthrow of the Monarchy cannot be

considered as a justification for the 100% quota for the DHHL and OHA

programs.

s. The Federal Property Clause

The State describes the question of the constitutional standard of

review as the threshold issue but then inserts a pre-threshold issue: whether

Congress' exercise of its power over federal property is even subject to

judicial review of any kind. (State 2d Motion at 4-6).

The State can argue this as part of a summary judgment motion but

the argument is not weighty enough to require a separate summary judgment

motion. The State confuses "plenary" power with extra-constitutional

power. As the State acknowledges, Congress's power to regulate federal

property is derived from Art. IV, § 3 of the Constitution.3 Like all of

Congress' constitutional powers, its power over federal property is limited

by the Bill of Rights, including the equal protection component of the Due

3 U.S. Constitution, Art. IV, § 3, provides:

The Congress shall have power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

22


Process Clause of the Fifth Amendment. It would be absurd to argue that a

federal statute that excluded all non-whites from the Hawai'i Volcanoes

National Park would be immune from constitutional review because it is an

exercise of Congress' plenary power over federal property. See

Bolling v. Sharpe, 347 U.S. 497 (1954) (Congress' power over the District

of Columbia and over federal school property does not extend to running

segregated schools).

Congress' so-called plenary powers, such as its power over federal

property and its power over Indian tribes, are just as much subject to

constitutional scrutiny under the Fifth Amendment as any of its other

powers. See Hodel v. Irving, 481 U.S. 704 (1987) (statute barring

inheritance of fractionated Indian land allotments held in trust by United

States took property in violation of Fifth Amendment); Babbitt v. Youpee,

519 U.S. 234 (1997) (amended version of same statute also violated Fifth

Amendment). See CANBY, AMERICAN INDIAN LAW 361 (3d ed. 1998)

(United States holds legal title to Indian allotments). The cases that the State

cites are not to the contrary; they involved issues of federal-state relations

and economic regulation that did not implicate individual liberties protected

by the Bill of Rights. In Kleppe v. New Mexico, 426 U.S. 529, 536 (1976),

the Supreme Court noted that although "determinations under the Property

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Clause are entrusted primarily to the judgment of Congress," nonetheless

"courts must eventually pass upon them."

Moreover, this Court has already granted the United States' motion to

dismiss on the grounds that the federal government has no interests at stake

in this case. Consistent with this ruling, Congress' powers over federal

property have no bearing on the State's management of state land.

6. OBA's Subsidiary Arguments

OHA does not explain how its proposed partial summary judgment

motions connect to the fundamental constitutional issue before this Court:

whether the challenged racial restrictions violate the Equal Protection

Clause. If they do not connect to this issue, they can be set aside as red

herrings. If they do connect to the constitutional issue, then each of them

really goes to particular legal issues that OHA uses to support its argument

that Mancari saves its program.

However, the applicability of Mancari is itself the subject of yet

another partial summary judgment motion that OHA proposes to file. The

entire pack of proposed motions is really one long argument for summary

judgment. The motion regarding the alleged federal trust responsibilities to

Hawaiians and native Hawaiians and the alleged delegation of that

responsibility to the State appears to be designed to bolster the claim that

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Hawaiians are like Indians in being the beneficiaries of federal trusts.

Similarly, the motion "on the applicability of international law" may be

aimed at showing that Hawaiians are "indigenous" in some sense, and so

should be treated like Indian tribes, who presumably are also "indigenous."

The motion "re Native Hawaiian interest in Ceded Lands" and the motion

"re the status of Native Hawaiians" also seem to be intended to bolster the

argument that Hawaiians are just like Indian tribes. In short, all of these

motions are merely arguments in support ofOHA's motion for summary

judgment on its "Mancari doctrine" theory. These arguments all could be

stated as parts of a single summary judgment argument, supported by

whatever allegedly uncontroverted evidence OHA has to offer.

7. OHA's Repeated Motions

OHA also proposes to revive two motions that this Court has already

denied: its motion asking this Court to take judicial notice of alleged

findings and conclusions of Congress; and a motion concerning alleged

non justiciable political questions concerning the legal status of Hawaiians

and native Hawaiians. This Court decided these motions correctly when it

denied them. There is no need to delay this case by revisiting them.

Thus, the essential issues in this case can be identified by applying the

basic principles of equal protection analysis. When that is done, the multiple

25


phases and motions proposed by Defendants either fall into place as

arguments supporting a single summary judgment motion or fall out of the

case as irrelevant.

E. Bifurcation Would Unnecessarily Delay this Case.

Seven months after the State filed its first motion to bifurcate,

Defendants' proposed divisions and subdivisions have multiplied to the

point where they threaten to stop all forward motion in this case. The State's

proposed trifurcation and OHA's octofurcation would delay rather than

expedite the matters discussed in parts Band C above.

Furthermore, OHA's proposal for a series of five partial summary

judgment motions followed by a summary judgment motion would delay the

entire case by about a year. These motions would have to be spaced out

about three months apart to give the parties time for briefing and to

accommodate the Court's schedule. All of the relevant issues could be

covered in a single exchange of cross motions for summary judgment.

IV. CONCLUSION

For the reasons set forth above, both the State's and OHA's motions

to bifurcate should be denied. Any party should be permitted to file a

motion for summary judgment addressing all legal issues the party thinks are

dispositive. In the alternative, the single legal issue of the applicability of

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Mancari should be separated out for threshold consideration by separate

cross-motions for summary judgment; once this Court has decided

that issue, each party should be permitted to file a motion for summary

judgment addressing all other dispositive legal issues.

Dated: Honolulu, Hawai'i: January 31,2003.

H. WILLIAM BURGESS PATRICK W. HANIFIN Attorneys for Plaintiffs

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, I

l.!W! he· J.J rft-v d.j~ 'U'}/l~.

rAvl:;; Idvd/.,(7/t. tw]

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HA WAll

EARL F. ARAKAKI, et aI,

Plaintiffs,

vs.

BENJAMIN J. CAYETANO, et aI.,

Defendants.

) CIVIL NO. 02-00139 SOM-KSC ) (Declaratory Judgment) ) ) OFFICE OF HAWAIIAN AFFAIRS ) DEFENDANTS'MOTIONTO ) BIFURCATE PROCEEDINGS ) ) ) )

--------------------------)

OFFICE OF HAWAIIAN AFFAIRS DEFENDANTS' MOTION TO BIFURCATE PROCEEDINGS

OFFICE OF HAWAIIAN AFFAIRS Defendants ROWENA AKANA,

HAUNANI APOLIONA, DONALD CATALUNA, LINDA DELA CRUZ, CLAYTON

H. W. HEE, COLETTE Y. MACHADO, CHARLES OTA, OSWALD K. STENDER,

and JOHN D. WAIHE'E, IV, in their official capacity as Trustees of the Office of

Hawaiian Affairs, by and through their attorney, SHERRY P. BRODER, hereby

respectfully move this Honorable Court for an order bifurcating the proceedings.

This motion is brought pursuant to Rules 7 and 42 of the Federal Rules of Civil

Procedure, the Order entered August 20, 2002, the memorandum, declaration and exhibit

attached hereto, and the records and pleadings filed herein.

DATED: Honolulu, Hawaii, ___________________ _

SHERRY P. BRODER JON M. VAN DYKE MELODY K. MacKENZIE

Attorneys for OFFICE OF HAWAIIAN AFFAIRS Defendants


SHERRY P. BRODER #1880 Attorney at Law

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