Ulaleo v. Paty

• Citation: 902 F.2d 1395
• Decision Date: 04 May 1990
• Docket Number: No. 89-16130,89-16130
• Parties: Kaolelo Lambert John ULALEO, on behalf of himself and others similarly situated; Pele Defense Fund, Plaintiffs-Appellants, v. William PATY, in his capacity as Chairman of the Board of Land and Natural Resources, State of Hawaii; Moses Kealoha; Douglas Ing; Leonard Zalopany; John Arisumi; Herbert Arata, in their capacity as members of the Board of Land and Natural Resources, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1395

902 F.2d 1395

Kaolelo Lambert John ULALEO, on behalf of himself and others similarly situated; Pele Defense Fund Plaintiffs-Appellants, v. William PATY, in his capacity as Chairman of the Board of Land and Natural Resources, State of Hawaii; Moses Kealoha Douglas Ing; Leonard Zalopany; John Arisumi; Herbert Arata, in their capacity as members of the Board of Land and Natural Resources, Defendants-Appellees.

No. 89-16130.

United States Court of Appeals Ninth Circuit.

Argued March 12, 1990.

Submitted March 19, 1990.

Decided May 4, 1990.

Yuklin Aluli, Melody K. MacKenzie, Native Hawaiian Legal Corp., Honolulu, Hawaii, Steven C. Moore, Native American Rights Fund, Boulder, Colorado, for plaintiffs-appellants.

William M. Tam (argued) and Steven S. Michaels, assisted on the brief, Deputy Attys. Gen., Honolulu, Hawaii, for defendants-appellees.

Sherry P. Broder, Honolulu, Hawaii, for amicus curiae The Office of Hawaiian Affairs.

James M. Dombroski, Petaluma, Cal., for amicus curiae Rainforest Action Network.

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

Before SNEED, FARRIS and FERNANDEZ, Circuit Judges.

FARRIS, Circuit Judge:

Kaolelo Lambert John Ulaleo and the Pele Defense Fund appeal the district court's granting of William Paty's and the Board of Land and Natural Resources' motion to dismiss. We affirm.

FACTS

When Hawaii was admitted to the Union, Congress transferred certain lands to the state that had previously been under federal control. Those transferred lands were subject to a trust as set out in the (Hawaii) Admission Act Sec. 5(f) which reads in part:

(f) The 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 ..., 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.

Pub.L. 86-3, 73 Stat. 4, March 18, 1959. In December of 1985, the Board of Land and Natural Resources exchanged approximately 27,785 acres of this "ceded [trust] land" for approximately 25,807 acres of land owned by the Campbell Estate. Plaintiffs argue that this exchange violated the conditions of the trust and that the BLNR is obligated to recover the land to the benefit of the trust beneficiaries. Plaintiffs do not argue that such an exchange is beyond the power of the BLNR but merely that this specific exchange was a breach of the trust duty. Thus, at a minimum the plaintiffs want the return of the land, to be followed by an appropriate procedure and consideration of the trust purposes before an exchange is made.

The exchange took place following a series of studies and hearings by the BLNR. The exchange was submitted to the legislature in January 1986 for review in accordance with H.R.S. Sec. 171-50(c), which allows the legislature to disapprove the exchange. The legislature took no action and the exchange became effective on the last day of that legislative session, April 23, 1986.

The suit is brought against the members of the Board of Land and Natural Resources in their official capacity. It was filed on April 25, 1988. The plaintiffs complain that the exchange violated section 5(f) of the Admission Act by committing trust lands to impermissible uses and by improperly valuing and appraising the land. The complaint alleged state law and state constitutional violations. Plaintiffs also raised a fourteenth amendment claim, that they were not given adequate notice and opportunity to be heard before the exchange occurred. The section 1983 claim (42 U.S.C. Sec. 1983) is based on the alleged violation of the Admission Act Sec. 5(f) (federal law) and the fourteenth amendment claims.

DISCUSSION

I. Plaintiffs can assert a section 1983 action.

In Keaukaha-Panaewa Community Assn. v. Hawaiian Homes Commn., 739 F.2d 1467 (9th Cir.1984), we found that the Admission Act Sec. 5(f), although not encompassing an implied right of action, did allow for a section 1983 action. 739 F.2d at 1470-71. The enforcement device provided by section 5(f) was not so comprehensive as to signal preclusion of a section 1983 action, based on violation of section 5(f). 739 F.2d at 1470-71; see also Middlesex County Sewerage Authority v. National Sea Clammers Assn., 453 U.S. 1, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981) (setting forth analysis for when enforcement limited to that allowed by the applicable statute). Ulaleo and the Pele Defense Fund thus have standing to bring suit. See also Price v. State of Hawaii, 764 F.2d 623, 628 (9th Cir.1985), cert. denied, 474 U.S. 1055, 106 S.Ct. 793, 88 L.Ed.2d 771 (1986).

II. Ulaleo's motion to substitute parties is denied.

Ulaleo died during the pendency of this appeal; his individual claims are thus moot. His counsel requests that a substitution of individual parties be allowed. As counsel recognizes, the suit was neither brought or pursued as a class action. We therefore deny the motion and allow the appeal to continue with the Pele Defense Fund as plaintiffs. See Vun Cannon v. Breed, 565 F.2d 1096, 1099 (9th Cir.1977) ("in the absence of a properly certified class, the representative plaintiff whose claim has become moot is himself without a litigable grievance, and the ... persons on whose behalf he seeks to continue the litigation ... have not yet achieved jurisprudential existence"). See also Kennerly v. United States, 721 F.2d 1252, 1260 (9th Cir.1983) (individual with mooted claim may continue to represent class only if class certified before mootness or mootness occurs after class certification).

III. This suit is barred by the eleventh amendment.

a. Unless Congress has made an unmistakably clear statement abrogating the eleventh amendment, suits may be brought against officials for prospective but not retrospective relief.

The eleventh amendment ¹ bars citizen suits against states, institutional arms of the state, and state officials in their official capacity when the relief sought is retrospective in nature, i.e. damages. See Green v. Mansour, 474 U.S. 64, 106 S.Ct. 423, 88 L.Ed.2d 371 (1985); Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985); Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Blaylock v. Schwinden, 862 F.2d 1352 (9th Cir.1988). Two exceptions to the eleventh amendment are: 1) if the underlying statute upon which the claim is based is founded upon the fourteenth amendment, see Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976), or 2) if Congress has by an unmistakably clear statement abrogated the eleventh amendment bar, see Pennsylvania v. Union Gas Co., --- U.S. ----, 109 S.Ct. 2273, 105 L.Ed.2d 1 (1989); Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242, 105 S.Ct. 3142, 3147, 87 L.Ed.2d 171 (1985). Further, if the relief sought is prospective relief against a state official, i.e. injunctions, the relief is allowable. See Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908); Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979); Milliken v. Bradley, 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977); Shaw v. California Department of Alcoholic Beverage Control, 788 F.2d 600 (9th Cir.1986).

The important distinction between retrospective and prospective relief is based on the case of Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), where a federal court enjoined the Minnesota Attorney General from enforcing a state law, as allegedly violative of the fourteenth amendment. The theory behind Young is that when the official acts unconstitutionally, he acts ultra vires and is "stripped of his official or representative character," Young, 209 U.S. at 160, 28 S.Ct. at 454, and of any immunity the state might have been able to provide. ²

Young 's applicability has been tailored to conform as precisely as possible to those specific situations in which it is "necessary to permit the federal courts to vindicate federal rights and hold state officials responsible to 'the supreme authority of the United States.' " Consequently, Young has been focused on cases in which a violation of federal law by a state official is ongoing as opposed to cases in which federal law has been violated at one time or over a period of time in the past, as well as on cases in which the relief against the state official directly ends the violation of federal law as opposed to cases in which that relief is intended indirectly to encourage compliance with federal law through deterrence or directly to meet third-party interests such as compensation.

Papasan v. Allain, 478 U.S. 265, 277-78, 106 S.Ct. 2932, 2939-40, 92 L.Ed.2d 209 (1986) (citations omitted). "Remedies designed to end a continuing violation of federal law are necessary to vindicate the federal interest in assuring the supremacy of that law. But compensatory or deterrence interests are insufficient to overcome the dictates of the Eleventh Amendment." Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 425, 88 L.Ed.2d 371 (1985) (citations omitted). The analysis must be of the substance not the form of the relief. See Papasan, 478 U.S. at 279, 106 S.Ct. at 2940.

Simply asking for injunctive relief and not damages does not clear the path for a suit. The Supreme Court has recognized that the difference between retrospective and prospective relief "will not in many instances be that between day and night." Edelman v....