    ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***




                                                              Electronically Filed
                                                              Supreme Court
                                                              SCAP-11-0001103
                                                              03-DEC-2013
                                                              08:31 AM




           IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                                ---o0o---


  SAMUEL L. KEALOHA, JR., VIRGIL E. DAY, JOSIAH L. HOOHULI, and
   PATRICK L. KAHAWAIOLAA, Petitioners/Plaintiffs-Appellants,

                                    vs.

   COLETTE Y. PI#IPI#I MACHADO, individually and in her official
  capacity as Chairperson and Trustee of the Office of Hawaiian
  Affairs; S. HAUNANI APOLIONA, ROWENA AKANA; DONALD CATALUNA;
 BOYD P. MOSSMAN; OSWALD STENDER; PETER APO; ROBERT K. LINDSEY,
 JR.; and JOHN D. WAIHE#E IV, individually and in their official
     capacity as Trustees of the Office of Hawaiian Affairs;
        and DANTE CARPENTER and WALTER HEEN, individually,
                 Respondents/Defendants-Appellees.


                             SCAP-11-0001103

        APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
             (CAAP-11-0001103; CIV. NO. 11-1-0575-03)

                            DECEMBER 3, 2013

      RECKTENWALD, C.J., NAKAYAMA, ACOBA, AND McKENNA, JJ.,
     AND CIRCUIT JUDGE KIM, IN PLACE OF POLLACK, J., RECUSED

             OPINION OF THE COURT BY RECKTENWALD, C.J.

           Samuel L. Kealoha, Jr., Virgil E. Day, Josiah L.

Hoohuli, and Patrick L. Kahawaiolaa (collectively, Plaintiffs),
     ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


brought this suit against Office of Hawaiian Affairs (OHA)

trustees,1 alleging that the OHA trustees improperly expended

trust funds on Hawaiians, as opposed to native Hawaiians as

defined by the Hawaiian Homes Commission Act (HHCA).2             Plaintiffs

argued that these expenditures violated the OHA trustees’ duty to

expend trust funds “in the sole interest” of native Hawaiians, as

required under Hawai#i Revised Statutes (HRS) § 10-3(1), §§ 4

and 5(f) of the Hawai#i Admission Act, and article XII, sections

4, 5, and 6 of the Hawai#i Constitution.


      1
            The OHA defendants are: Colette Y. Pi#ipi#i Machado, individually
and in her official capacity as Chairperson and Trustee of OHA; S. Haunani
Apoliona, Rowena Akana, Oswald Stender, Peter Apo, Robert K. Lindsey, Jr., and
John D. Waihe#e IV, individually and in their official capacities as Trustees
of OHA; Donald Cataluna, individually; and Carmen Lindsey and Dan Ahuna, in
their official capacities as Trustees (collectively, OHA trustees).
Plaintiffs’ complaint named as defendants Machado, individually and in her
official capacity as Chairperson and Trustee of OHA; Apoliona, Akana,
Cataluna, Boyd P. Mossman, Stender, Apo, Robert K. Lindsey, Jr., and Waihe#e,
individually and in their official capacities as Trustees of OHA; and Dante
Carpenter and Walter Heen, individually. The record indicates that Plaintiffs
have since dismissed all claims against Carpenter and Heen. Also, the OHA
trustees stated that Mossman resigned from his position as OHA trustee during
the pendency of the instant action, and was replaced by Carmen Lindsey.
Accordingly, Carmen Lindsey was substituted for Mossman as to claims against
Mossman in his official capacity. See Hawai#i Rules of Appellate Procedure
(HRAP) Rule 43(c)(1). It also appears that Plaintiffs are not alleging claims
against Mossman in his individual capacity. Dan Ahuna also replaced Cataluna
as trustee in 2012. See State of Hawaii, Office of Elections, Hawaii General
2012 Final Summary Report 2 (Nov. 6, 2012), http://hawaii.gov/elections/
results/2012/general/elections/results/2012/general/files/histatewide.pdf.
Thus, it would also appear that Ahuna is substituted for Cataluna as to claims
against Cataluna in his official capacity. See HRAP Rule 43(c)(1).
      2
            As used in this opinion, “Hawaiian” includes individuals with some
Hawaiian ancestry, but less than the 50% required to be a native Hawaiian
under the HHCA. Section 201(a) of the HHCA defines “native Hawaiian” as “any
descendant of not less than one-half part of the blood of the races inhabiting
the Hawaiian Islands previous to 1778.” Hawaiian Homes Comm’n Act, 1920, Act
of July 9, 1921 (HHCA), Pub. L. 67-34, 42 Stat. 108, reprinted in 1 HRS 261
(2009). For purposes of clarity, this opinion will use the term “native
Hawaiian” as defined in the HHCA. This opinion will also use the term
“Hawaiian” as defined in HRS § 10-2 (2009): “any descendant of the aboriginal
peoples inhabiting the Hawaiian Islands which exercised sovereignty and
subsisted in the Hawaiian Islands in 1778, and which peoples thereafter have
continued to reside in Hawai#i.”

                                     -2-
       ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


                The OHA trustees filed a Motion to Dismiss the

complaint, arguing that the Plaintiffs’ claims were barred under

principles of res judicata and collateral estoppel by the U.S.

District Court’s decision and judgment in Day v. Apoliona (Day

II), No. 05-00649, 2008 WL 2511198, *7-14 (D. Haw. June 20, 2008)

and the Ninth Circuit Court of Appeals’ opinion and judgment in

that case, 616 F.3d 918, 924-28 (9th Cir. 2010), both of which

held that the challenged expenditures were proper under federal

law.        The OHA trustees also argued that even if res judicata and

collateral estoppel did not bar Plaintiffs’ claims, they failed

on the merits for the same reasons as the claims set forth in Day

II.

                The circuit court dismissed the complaint, finding that

it failed to state a claim upon which relief could be granted

pursuant to Hawai#i Rules of Civil Procedure (HRCP) Rule

12(b)(6).        The Plaintiffs then filed a motion for leave to file

an amended complaint “to correct the deficiencies identified by

the court[.]”         The circuit court denied the motion.            Plaintiffs

appeal from the circuit court’s December 6, 2011 final judgment

in favor of the OHA trustees.3

                On appeal to this court, Plaintiffs raise the following

points of error:
                (1) Whether the [circuit court] erred in dismissing
                the complaint for failure to state a claim?



        3
                The Honorable Karl K. Sakamoto presided.

                                         -3-
     ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


            (2) Whether dismissal is appropriate on grounds of res
            judicata or collateral estoppel?

            In deciding a motion to dismiss for failure to state a

claim, courts must interpret the complaint in the light most

favorable to the plaintiff, and should dismiss only when “it

appears beyond doubt that the plaintiff can prove no set of facts

in support of his or her claim that would entitle him or her to

relief.”    County of Kaua#i v. Baptiste, 115 Hawai#i 15, 24, 165

P.3d 916, 925 (2007) (citation omitted).          Applying that test

here, we hold that the circuit court did not err in dismissing

Plaintiffs’ complaint.4      We also hold that the circuit court did

not abuse its discretion in denying Plaintiffs’ motion for leave

to file an amended complaint.        Accordingly, we affirm the circuit

court’s December 6, 2011 judgment.

                              I.   Background

A.    Public trust funds

            The Hawai#i Admission Act (Admission Act), Pub. L. No.

86–3, 73 Stat. 4 (1959), reprinted in 1 HRS 135 (2009), made

Hawai#i a state of the Union.       As a condition of admission, “the

State of Hawai#i agreed to hold certain lands granted to the

State by the United States in a public land trust,” subject to

the trust provisions set forth in § 5(f) of the Admission Act.

Corboy v. Louie, 128 Hawai#i 89, 92, 283 P.3d 695, 698 (2011)

(citing Office of Hawaiian Affairs v. State, 96 Hawai#i 388, 390,

      4
            In light of this holding, we do not reach the issue of whether res
judicata or collateral estoppel bar Plaintiffs’ claims.

                                     -4-
    ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


31 P.3d 901, 903 (2001); Admission Act § 5).          Section 5(f)

requires the State to hold those lands and the profits from them

for one of five enumerated purposes:        (1) “the support of the

public schools and other public educational institutions”; (2)

“the betterment of the conditions of native Hawaiians, as defined

in the [HHCA], as amended”; (3) “the development of farm and home

ownership on as widespread a basis as possible”; (4) “the making

of public improvements”; and (5) “the provision of lands for

public use.”5

           Before 1978, the State directed the proceeds and income

of the trust lands “by and large to the Department of

Education[,]” making public education the primary beneficiary of

the trust.   Office of Hawaiian Affairs v. Yamasaki, 69 Haw. 154,

161-62, 737 P.2d 446, 450-51 (1987) (quoting Office of the



     5
           Section 5(f) provides:

           The lands granted to the State of Hawai#i by
           subsection (b) of this section and public lands
           retained by the United States under subsections (c)
           and (d) and later conveyed to the State under
           subsection (e), 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 [HHCA], 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.


                                    -5-
     ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


Legislative Auditor, Final Report on the Public Land Trust 14

(1986)).    However, the 1978 Constitutional Convention proposed –

and Hawai#i voters adopted – constitutional amendments that

expressly and fundamentally changed the State’s objectives with

regard to the § 5(f) public land trust.6          Id.   Article XII,

section 4 specified that the public land trust, except for


      6
            Sections 4, 5 and 6 of Article XII of the Hawai#i Constitution
provide:

            Section 4. The lands granted to the State of Hawai#i
            by Section 5(b) of the Admission Act and pursuant to
            Article XVI, Section 7, of the State Constitution,
            excluding therefrom lands defined as “available lands”
            by Section 203 of the [HHCA], as amended, shall be
            held by the State as a public trust for native
            Hawaiians and the general public.

            Section 5. There is hereby established an Office of
            Hawaiian Affairs. The Office of Hawaiian Affairs
            shall hold title to all the real and personal property
            now or hereafter set aside or conveyed to it which
            shall be held in trust for native Hawaiians and
            Hawaiians. There shall be a board of trustees for the
            Office of Hawaiian Affairs elected by qualified voters
            who are Hawaiians, as provided by law. The board
            members shall be Hawaiians. There shall be not less
            than nine members of the board of trustees; provided
            that each of the following Islands have one
            representative: Oahu, Kauai, Maui, Molokai and
            Hawai#i. The board shall select a chairperson from
            its members.

            Section 6. The board of trustees of the Office of
            Hawaiian Affairs shall exercise power as provided by
            law: to manage and administer the proceeds from the
            sale or other disposition of the lands, natural
            resources, minerals and income derived from whatever
            sources for native Hawaiians and Hawaiians, including
            all income and proceeds from that pro rata portion of
            the trust referred to in section 4 of this article for
            native Hawaiians; to formulate policy relating to
            affairs of native Hawaiians and Hawaiians; and to
            exercise control over real and personal property set
            aside by state, federal or private sources and
            transferred to the board for native Hawaiians and
            Hawaiians. The board shall have the power to exercise
            control over the Office of Hawaiian Affairs through
            its executive officer, the administrator of the Office
            of Hawaiian Affairs, who shall be appointed by the
            board.

                                     -6-
    ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


Hawaiian Home Lands, is to be held “as a public trust for native

Hawaiians and the general public.”        Article XII, section 5

established the Office of Hawaiian Affairs (OHA), and directed

that it “hold title to all the real and personal property now or

hereafter set aside or conveyed to it which shall be held in

trust for native Hawaiians and Hawaiians.”          Article XII, section

6 described the power of the OHA board of trustees and noted that

the “income and proceeds from that pro rata portion of the

[public land trust] for native Hawaiians” was included among the

property that OHA was to hold and manage in trust “for native

Hawaiians and Hawaiians.”      In describing its vision for OHA to be

independent from all other branches of government, the

Constitutional Convention’s Committee on Hawaiian Affairs

expressed a desire to stop the “commingling of funds intended for

native Hawaiians of one-half blood with other moneys in the state

treasury.”   Stand. Comm. Rep. No. 59, in 1 Proceedings of the

Constitutional Convention of Hawai#i of 1978, at 645.           The

framers also believed it important that Hawaiians have “the right

to determine the priorities which will effectuate the betterment

of their condition and welfare by granting to the board of

trustees powers to ‘formulate policy relating to affairs of




                                    -7-
    ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


native Hawaiians.’”7     Stand. Comm. Rep. No. 59, in 1978

Proceedings, at 645.

           To execute these constitutional provisions, the 1979

legislature enacted Act 196, codified in HRS chapter 10.             See

1979 Haw. Sess. Laws Act 196, at 398-408; HRS ch. 10.            Act 196,

inter alia, created “an office of Hawaiian affairs constituted as

a body corporate which shall be a separate entity independent of

the executive branch,” and set forth the powers and duties of the

OHA board.    1979 Haw. Sess. Laws Act 196, § 2, at 400.           HRS § 10-

38 sets forth OHA’s purposes, including:

      7
            The foregoing quote by the Committee on Hawaiian Affairs used the
term “native Hawaiians” rather than “Hawaiians.” Stand. Comm. Rep. No. 59, in
1978 Proceedings, at 645. However, the committee chose to use the term
“native Hawaiians” to refer to all Hawaiians. See id. at 643 (“In the
sections that follow, your Committee refers to all descendants, regardless of
blood quantum, as being native Hawaiians.”).
     8
           HRS § 10-3 (2009) provides, in relevant part:

           The purposes of the office of Hawaiian affairs
           include:

           (1) The betterment of conditions of native Hawaiians.
           A pro rata portion of all funds derived from the
           public land trust shall be funded in an amount to be
           determined by the legislature for this purpose, and
           shall be held and used solely as a public trust for
           the betterment of the conditions of native Hawaiians.
           For the purpose of this chapter, the public land trust
           shall be all proceeds and income from the sale, lease,
           or other disposition of lands ceded to the United
           States by the Republic of Hawai#i under the joint
           resolution of annexation, approved July 7, 1898 (30
           Stat. 750), or acquired in exchange for lands so
           ceded, and conveyed to the State of Hawai#i by virtue
           of section 5(b) of the Act of March 18, 1959 (73 Stat.
           4, the Admissions Act), (excluding therefrom lands and
           all proceeds and income from the sale, lease, or
           disposition of lands defined as “available lands” by
           section 203 of the [HHCA], as amended), and all
                                                                (continued...)

                                    -8-
    ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


           (1) The betterment of conditions of native
           Hawaiians.[9] A pro rata portion of all funds derived
           from the public land trust shall be funded in an
           amount to be determined by the legislature for this
           purpose, and shall be held and used solely as a public
           trust for the betterment of the conditions of native
           Hawaiians. . . .

           (2)   The betterment of conditions of Hawaiians;[10]

           (3) Serving as the principal public agency in this
           State responsible for the performance, development,
           and coordination of programs and activities relating
           to native Hawaiians and Hawaiians[.]

HRS § 10-3 (emphasis added).

           Among the powers and duties the legislature granted to

the OHA board of trustees is the power to “[m]anage, invest, and

administer the proceeds from the sale or other disposition of



     8
      (...continued)
           proceeds and income from the sale, lease, or other
           disposition of lands retained by the United States
           under sections 5(c) and 5(d) of the Act of March 18,
           1959, later conveyed to the State under section 5(e);

           (2)   The betterment of conditions of Hawaiians[.]

(Emphasis added).
     9
           HRS § 10-2 (2009) defines “[n]ative Hawaiian” as:

           any descendant of not less than one-half part of the
           races inhabiting the Hawaiian Islands previous to
           1778, as defined by the [HHCA], as amended; provided
           that the term identically refers to the descendants of
           such blood quantum of such aboriginal peoples which
           exercised sovereignty and subsisted in the Hawaiian
           Islands in 1778 and which peoples thereafter continued
           to reside in Hawai#i.
     10
           HRS § 10-2 defines “Hawaiian” as:

           any descendant of the aboriginal peoples inhabiting
           the Hawaiian Islands which exercised sovereignty and
           subsisted in the Hawaiian Islands in 1778, and which
           peoples thereafter have continued to reside in
           Hawai#i.


                                     -9-
     ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


lands, natural resources, minerals, and income derived from

whatever sources for native Hawaiians and Hawaiians, including

all income and proceeds from that pro rata portion of the trust

referred to in section 10-3[.]”        HRS § 10-5(1) (2009).       In 1980,

the legislature set the pro rata share at “[t]wenty per cent of

all funds derived from the public land trust[.]”11           1980 Haw.

Sess. Laws Act 273, § 1 at 525, codified at HRS § 10-13.5 (2009).

B.    Federal court action

            On March 10, 2006, Plaintiffs,12 identifying themselves

as native Hawaiians as defined in Section 201(a) of the HHCA,

filed an amended complaint in the United States District Court

for the District of Hawai#i (U.S. District Court) against current

and former OHA trustees, alleging that the OHA trustees misspent

funds derived from the trust established by § 5(f) of the

Admission Act by expending those funds without regard to blood

quantum.    Specifically, Plaintiffs contended that the OHA

trustees breached their “legal duty” to expend trust funds solely

for the betterment of the conditions of native Hawaiians by




      11
            HRS § 10-13.5 (2009) provides that “[t]wenty per cent of all funds
derived from the public land trust, described in section 10-3, shall be
expended by [OHA] for the purposes of this chapter.”
      12
            The plaintiffs in the federal court action included the Plaintiffs
in the instant state action and Mel Hoomanawanui. Day v. Apoliona (Day I),
451 F. Supp. 2d 1133, 1134 (D. Haw. 2006).

                                    -10-
     ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


spending those trust funds to lobby for the Akaka Bill,13 and to

support the Native Hawaiian Legal Corporation (NHLC),14 Na Pua

No#eau Education Program (Na Pua No#eau),15 and Alu Like.16

Plaintiffs alleged that the OHA trustees’ expenditures violated

the Admission Act, enforceable in federal court by 42 U.S.C.

§ 1983, the Equal Protection Clause of the Fourteenth Amendment

to the United States Constitution, and Hawai#i common law and HRS

§ 10-16(c).17    On August 10, 2006, the U.S. District Court

dismissed the action, holding that the Plaintiffs may not enforce


      13
            The proposed Native Hawaiian Government Reorganization Act of
2007, known as the Akaka Bill, “would create a process through which the
United States could recognize a governing entity for Hawaii’s indigenous
people.” Day II, 616 F.3d at 922 (citation omitted).
      14
            NHLC received money from OHA to provide legal representation to
Hawaiians with regard to, inter alia, the “[p]reservation and perpetuation of
traditional and customary practices [and] [p]rotection of culturally
significant places, including burial sites and material culture.” Day II, 616
F.3d at 927-28 (brackets in original).
      15
            Na Pua No#eau is an educational center that received funds from
OHA to provide educational services to Hawaiian children in grades K through
12. Day II, 616 F.3d at 928; Day II, 2008 WL 2511198, at *12.
      16
            Alu Like is a “nonprofit organization that strives to help
Hawaiians and native Hawaiians achieve social and economic self-sufficiency
through the provision of early childhood education and child care, elderly
services, employment preparation and training, library and genealogy services,
specialized services for at-risk youth, and information and referral
services.” Day II, 2008 WL 2511198, at *12.
      17
            Although Plaintiffs alleged a violation of HRS § 10-16(c), it
appears that the statute establishes a basis for suit rather than a
requirement that can be violated. HRS § 10-16(c) (2009) provides:

            (c) In matters of misapplication of funds and
            resources in breach of fiduciary duty, board members
            shall be subject to suit brought by any beneficiary of
            the public trust entrusted upon the office, either
            through the office of the attorney general or through
            private counsel.

                                    -11-
      ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


public trust duties in the Admission Act under § 1983.              Day I,

451 F. Supp. 2d at 1136.        The U.S. District Court also dismissed

the Plaintiffs’ Equal Protection claim and declined to exercise

supplemental jurisdiction over the remaining state law claims.

Id.

             Plaintiffs appealed to the Ninth Circuit Court of

Appeals, contesting only the dismissal of the § 1983 claim for

violation of the Admission Act.         Day v. Apoliona, 496 F.3d 1027,

1030 (9th Cir. 2007).       The Ninth Circuit reversed the U.S.

District Court’s dismissal of the case and remanded, holding that

“each Native Hawaiian plaintiff, as a beneficiary of the trust

created by § 5(f), has an individual right to have the trust

terms complied with, and therefore can sue under § 1983 for

violation of that right.”        Id. at 1039.     The Ninth Circuit left

“to the district court to interpret those § 5(f) purposes to

determine in the first instance not only whether [Plaintiffs’]

allegations are true, but also whether the described expenditures

in fact violate § 5(f).”        Id.   The Ninth Circuit emphasized that

it was expressing no view concerning the merits of Plaintiffs’

expenditure challenges.        Id. at 1040 n.14.

             On remand, the U.S. District Court granted the OHA

trustees summary judgment, concluding that OHA’s expenditures of

the trust funds to support the Akaka Bill, NHLC, Na Pua No#eau,


                                      -12-
    ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


and Alu Like are consistent with the Admission Act.            Day II, 2008

WL 2511198, at *1, *14.      Specifically, the U.S. District Court

stated that the Plaintiffs conceded that the OHA trustees had

broad discretion in determining whether a particular expenditure

betters the conditions of native Hawaiians.          Id. at *7.    The

court then viewed each of the challenged expenditures under trust

principles.    Id. at *8-13.    The court first rejected the

Plaintiffs’ contention that the OHA trustees abused their

discretion in supporting the Akaka Bill, and found that “[e]ven

if the Akaka Bill is intended to benefit Hawaiians in general,

the OHA trustees would not be unreasonable or arbitrary in

viewing the Akaka Bill as also benefitting native Hawaiians.”

Id. at *7-8.    Specifically, the court noted that “[n]umerous”

legal challenges had been brought against Hawaiian-only and

native Hawaiian-only programs, alleging Equal Protection

violations.    Id. at *8.    The court further noted that “[a]lthough

most race-based preferences are subject to ‘strict scrutiny,’

preferences given to American Indian tribes are reviewed under

the ‘rational basis’ standard.”       Id. (citing Morton v. Mancari,

417 U.S. 535 (1974)).     Given the foregoing legal framework,

“passage of the Akaka Bill might ultimately affect whether

programs benefitting only Hawaiians and native Hawaiians are

reviewed under the ‘strict scrutiny’ standard as involving racial


                                   -13-
      ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


preferences, or under a ‘rational basis’ standard as involving a

political preference.”       Id.    Thus, the court reasoned, the

trustees’ expenditures in support of the Akaka Bill were proper:
             It cannot be said that the OHA trustees are abusing
             their discretion in supporting legislation that could
             affect challenges to programs favoring Hawaiians and
             native Hawaiians. The OHA trustees are reasonably
             exercising their fiduciary judgment when they expend
             trust funds in support of the Akaka Bill. That action
             is consistent with the public trust requirement that
             trust funds be used for the betterment of the
             conditions of native Hawaiians, even if the funds
             simultaneously better the conditions of Hawaiians.

Id.

             The court next examined OHA’s contract with the NHLC,

and noted that under the contract, NHLC was to
             render legal services and provide legal representation
             to clients in substantive areas which shall include
             but shall not be limited to:
                   (a) Assertion and defense of quiet title
             actions;
                   (b) Protection, defense and assertion of
             ahupua#a and kuleana tenant rights, including rights
             of access and rights to water;
                   (c) Land title assistance, including review of
             title and genealogy;
                   (d) Preservation and perpetuation of
             traditional and customary practices;
                   (e) Protection of culturally significant
             places, including burial sites and material culture;
             and
                   (f) Preservation of Native Hawaiian Land Trust
             entitlements.

Id. at *10-11.

             The court found that OHA’s contract with the NHLC

“arguably betters the conditions of native Hawaiians because it

helps to preserve and perpetuate their traditional and customary

practices, protect culturally significant areas, and help them


                                     -14-
    ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


assert their legal rights regarding land and water in court.”

Id. at 11.   The court also found that OHA’s contract with the

NHLC “also can be said” to support other public trust purposes,

such as aiding farm and home ownership, making public

improvements, and providing for lands for public use.            Id.

           The court next determined that OHA’s use of trust funds

to support Na Pua No#eau constituted a proper exercise of the OHA

trustees’ fiduciary judgment.       Id. at *12.     The court noted that

according to its contract with OHA, the University of Hawai#i at

Hilo, through its Na Pua No#eau program, was to “provide for

educational enrichment programs” that were “designed to optimize

learning for Hawaiian students” and “develop a stronger interest

in learning, connect learning and education to one’s Hawaiian

identity, and explore possible educational, career and academic

goals.”   Id. (quotation marks omitted).        In light of these

purposes, the court found that OHA’s support of Na Pua No#eau

“arguably betters the conditions of native Hawaiians in ensuring

that learning is connected to students’ Hawaiian identity.”             Id.

The court also found that the support of Na Pua No#eau was

consistent with the § 5(f) trust purpose of supporting public

schools and other public educational institutions.           Id.

           Finally, the court held that the OHA trustees

“exercised their reasonable discretion and fiduciary judgment” in


                                   -15-
    ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


supporting Alu Like.     Id. at *13.      The court described Alu Like

as “a nonprofit organization that strives to help Hawaiians and

native Hawaiians achieve social and economic self-sufficiency

through the provision of early childhood education and child

care, elderly services, employment preparation and training,

library and genealogy services, specialized services for at-risk

youth, and information and referral services.”           Id. at *12.    The

court concluded that “Alu Like’s programs better the conditions

of native Hawaiians and support public education,” and that the

OHA trustees “did not abuse their considerable discretion in

determining that one of the ways they were going to better the

conditions of native Hawaiians was by providing support to a

service organization with the mission of helping Hawaiians and

native Hawaiians achieve social and economic self-sufficiency.”

Id. at *13.

           The U.S. District Court noted that it did not examine

whether the OHA trustees’ expenditures violated state law:
           [F]or purposes of the § 1983 claim asserted in Count
           I, this court examines only whether the OHA trustees
           violated a federal right or statute, in this case, the
           Admission Act. Whether the OHA trustees are violating
           state law by using public trust funds to support the
           Akaka Bill, the Native Hawaiian Legal Corporation, the
           Na Pua No#eau Education Program, and Alu Like is not
           before this court.

Id. at *5.

           The Plaintiffs appealed the U.S. District Court’s grant

of summary judgment.     Day II, 616 F.3d at 921.        The Ninth Circuit

                                   -16-
      ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


affirmed the district court’s order.          Id.   First, the Ninth

Circuit rejected Plaintiffs’ argument that federal law requires

the OHA trustees to spend OHA’s twenty percent share of the

§ 5(f) trust only “for the betterment of the conditions of native

Hawaiians.”     Id. at 921, 924.      The Ninth Circuit stated that the

OHA trustees have not breached their federal trust obligations so

long as the expenditures meet any of the five purposes enumerated

in § 5(f).     Id. at 925.     Second, the Ninth Circuit rejected

Plaintiffs’ alternative argument that, “even if OHA trustees may

spend for any of the § 5(f) trust purposes, they breached the

trust under federal law because each of the challenged projects

was not restricted to one or more of the enumerated purposes.”

Id.    Relying on the common law of trusts, the Ninth Circuit noted

that “a trustee’s ‘power is discretionary except to the extent

its exercise is directed by the terms of the trust or compelled

by the trustee’s fiduciary duties.’”          Id. at 926 (quoting

Restatement (Third) of Trusts § 87 cmt. a).            The Ninth Circuit

found that because § 5(f) set forth broad purposes and “does not

direct specific expenditures,” the OHA trustees “have discretion

(i.e., are to use fiduciary judgment) to determine whether a

particular use of trust funds serves one or more of the trust

purposes.”     Id. (citation, quotation marks, and brackets

omitted).     The Ninth Circuit also articulated the following trust


                                     -17-
    ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


principles:
           “When a trustee has discretion with respect to the
           exercise of a power, its exercise is subject to
           supervision by a court only to prevent abuse of
           discretion.” In the context of the narrow federal
           inquiry into whether an expenditure is a use for a
           trust purpose, an abuse of discretion occurs when a
           trustee “has acted unreasonably – that is, beyond the
           bounds of reasonable judgment.”

Id. (quoting Restatement (Third) of Trusts § 87, § 87 cmt. c)

(internal citation omitted).

           Accordingly, the Ninth Circuit evaluated the challenged

expenditures to determine whether they were “beyond the bounds of

a trustee’s reasonable judgment that the project in question

would serve § 5(f) trust purposes.”        Id. at 926-27.      In doing so,

the Ninth Circuit determined that each of the challenged

expenditures was proper and met the § 5(f) purpose of betterment

of the conditions of native Hawaiians.         Specifically, the Ninth

Circuit found that: (1) “[a]lthough it is possible that the

processes the Akaka Bill envisions could dilute some benefits

that native Hawaiians currently enjoy to the exclusion of other

Hawaiians, a trustee could reasonably conclude that the bill’s

benefits to the conditions of native Hawaiians outweigh any

drawback”; (2) it was within the trustees’ broad discretion to

determine that using trust funds for the NHLC will better the

conditions of native Hawaiians; (3) a reasonable trustee could

view supporting Na Pua No#eau as serving at least two of the

enumerated § 5(f) purposes, including the betterment of the

                                   -18-
     ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


conditions of native Hawaiians, as “[n]ative Hawaiians stand to

benefit if Hawaiian identity in general is preserved and pride in

Hawaiian identity fostered[]”; and (4) trustees could reasonably

determine that the conditions of native Hawaiians would benefit

from Alu Like’s efforts to “help[] Hawaiians and native Hawaiians

achieve social and economic self-sufficiency.”            Id. at 927-28

(brackets in original).

            The Ninth Circuit emphasized that its ruling was based

on federal, rather than state law.         For example, the Ninth

Circuit stated that “[a]lleged violations of state laws regarding

the management and disposition of § 5(f) funds are not

necessarily breaches, under federal law, of the § 5(f) trust

itself.”    Id. at 924 (emphasis in original).         The Ninth Circuit

also noted that the Plaintiffs’ claims may be actionable under

state law:
            We hold that, although § 5(f) permits Hawai#i to
            impose further rules and restrictions on management of
            the § 5(f) trust, it does not require the state and
            its agents to abide by those rules and restrictions as
            a matter of federal law. Those alleged violations are
            actionable under state law, if at all.

Id. at 929 (emphasis in original).

C.    State circuit court proceedings

            On March 23, 2011, Plaintiffs filed a complaint in

circuit court.     Plaintiffs alleged that the OHA trustees owed

them a duty to spend trust funds “in the sole interest of the



                                    -19-
    ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


[native Hawaiian] beneficiaries, except for collateral benefits

to nonbeneficiaries, so long as the primary benefits of any

action is [sic] enjoyed by beneficiaries, and the collateral

benefits do not detract from nor reduce the benefits enjoyed by

the beneficiaries.”     Plaintiffs further alleged that the OHA

trustees violated “clearly established law” and breached this

duty by “expend[ing] trust funds without regard to the blood

quantum contained in the definition of native Hawaiians” as set

forth in the HHCA.     Specifically, Plaintiffs alleged that the OHA

trustees expended trust funds without regard to blood quantum on

lobbying efforts in support of the Akaka Bill, and on the NHLC,

Na Pua No#eau, and Alu Like.      Plaintiffs asserted that they

suffered injury as a result because the “unlawful expenditures of

trust funds . . . have diminished the funds available to be

expended for betterment of the conditions of the ‘native

Hawaiian’ beneficiaries pursuant to H.R.S. § 10-3(1), Article

XII, §§ 4, 5, and 6 [of the Hawai#i Constitution], and §§ 4 and

5(f) of the Hawai#i Admission Act[.]”        Plaintiffs sought an

accounting and restoration of the funds, injunctive relief,

damages pursuant to state common law and HRS § 10-16(c), and

attorney’s fees and costs.

           On August 26, 2011, the OHA trustees filed a Motion to

Dismiss the complaint.     In their memorandum in support of the


                                   -20-
    ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


motion, the OHA trustees argued that to the extent Plaintiffs

asserted a claim for breach of trust under § 5(f), it was barred

by res judicata based upon the U.S. District Court’s 2008

judgment in Day II and the analysis in the U.S. District Court’s

and Ninth Circuit’s opinions in the case.         The OHA trustees also

argued that Plaintiffs’ breach of trust claim pursuant to HRS

§ 10-3(1) and article XII, sections 4, 5, and 6 of the Hawai#i

Constitution was barred by collateral estoppel.           The OHA trustees

further argued that even if res judicata and collateral estoppel

did not bar Plaintiffs’ claims, they failed on the merits for the

reasons set forth in Day II.       Finally, the OHA trustees contended

that to the extent the Plaintiffs were seeking damages against

the OHA trustees in their individual capacities, the claims fail

because there is no state law counterpart to § 1983, and, even if

there was, any claim based upon it would be defeated by the

doctrine of qualified immunity.

           In their memorandum in opposition, Plaintiffs argued

that their state law claims were not precluded by the doctrines

of res judicata or collateral estoppel.         Plaintiffs stated that

they were not asserting claims under federal law, and that the

federal courts did not consider the state law claims.            Plaintiffs

also appeared to draw further distinctions between state and




                                   -21-
     ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


federal law by arguing that unlike federal law, HRS Chapter 67318

waives the State’s immunity to suits for breach of the § 5(f)

trust.     Plaintiffs further argued that “[t]here are significant

state law provisions that impose a greater fiduciary duty upon

OHA trustees than federal law, specifically HRS § 673-

1(b)(1),[19] as incorporated into HRS § 10-16(c).”

             In their reply brief, the OHA trustees argued that

Plaintiffs’ breach of trust claim was barred by collateral

estoppel because although the U.S. District Court in Day declined

to exercise pendent jurisdiction over the state law claim, the

district court, in considering the claims under federal law,


      18
            HRS § 673-1 (1993) waives State immunity “for any breach of trust
or fiduciary duty resulting from the acts or omissions of its agents, officers
and employees in the management and disposition of trust funds and resources
of” the Hawaiian home lands trust, and the native Hawaiian public trust.
      19
             HRS § 673-1(b) provides that the waiver does not apply to the
following:

             (1) The acts or omissions of the State’s officers and
             employees, even though such acts or omissions may not
             realize maximum revenues to the Hawaiian home lands
             trust and native Hawaiian public trust, so long as
             each trust is administered in the sole interest of the
             beneficiaries; provided that nothing herein shall
             prevent the State from taking action which would
             provide a collateral benefit to nonbeneficiaries, but
             only so long as the primary benefits are enjoyed by
             beneficiaries, and the collateral benefits do not
             detract from nor reduce the benefits enjoyed by the
             beneficiaries;

             (2) Any claim for which a remedy is provided elsewhere
             in the laws of the State; and

             (3) Any claim arising out of the acts or omissions of
             the members of the board of trustees, officers and
             employees of the office of Hawaiian affairs, except as
             provided in section 10-16.

                                     -22-
    ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


analyzed each challenged expenditure and held the OHA trustees

could reasonably have exercised their considerable judgment and

discretion to determine that each expenditure betters the

conditions of native Hawaiians.        The OHA trustees also argued

that Plaintiffs’ reliance on HRS § 673-1(b)(1) was misplaced

because the statute is a waiver of sovereign immunity that, by

its express terms, is not applicable to claims against OHA

trustees.

            The circuit court dismissed the complaint, finding

that, even assuming that all allegations in the complaint were

true, the complaint failed to state a claim upon which relief

could be granted pursuant to HRCP Rule 12(b)(6):
                  [P]laintiffs have brought this suit under [HRS
            § 10-16(c)] which provides that in matter of
            misapplication for funds and resources in breach of
            fiduciary duty the OHA board members shall be subject
            to suit. However, in their complaint the only support
            plaintiffs provide for their claims are their
            allegations that OHA’s use of funds for the Akaka
            Bill, NHLC, Na Pua No#eau, and Alu Like are expended
            for the benefit of Hawaiians without regard to the
            blood quantum.

                  Those allegations fail to establish a claim of
            breach of fiduciary duty under [HRS § 10-16(c)] where
            plaintiffs’ allegations that the funds are being
            expended without regard to blood quantum does not
            represent a per se violation of defendants’ fiduciary
            duty. Nowhere does it allege that defendants are
            using public trust funds specifically to better those
            of non-Native Hawaiian ancestry. Furthermore nothing
            in the allegations state that defendants are required
            to use the funds exclusively for the betterment of
            only Native Hawaiians.

                  Plaintiffs allege that defendants are required
            to expend funds in a way which primarily benefits
            beneficiaries which are Native Hawaiians and that
            non-beneficiaries are only entitled to collateral


                                    -23-
    ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


           benefits. The court dismisses this argument as this
           standard arises from language found in [HRS
           § 673-1(b)(1)], a specific statute under the Native
           Hawaiian Trust Judicial Relief Act which claim has not
           been brought or pled in the complaint itself.
           Additionally even if applicable, HRS 673-3 requires
           that plaintiffs first exhaust their administrative
           remedies before bringing suit in Circuit Court, a step
           that undisputedly has not been shown in the complaint
           thus the court would lack subject matter jurisdiction.

                 Even if plaintiffs were to have standing under
           673-1, the language found in [HRS § 673-1(b)(1)] is
           inapplicable here. That section refers to a waiver of
           immunity by state officers and employees in Hawaiian
           Home Land trusts and Native Hawaiian public trusts.
           However, there is a subsequent provision, [HRS
           673-1(b)(3)], which specifically addresses the issue
           of waiver of immunity for OHA members which is or
           [sic] arguably the case here.

                 Under [HRS § 673-1(b)(3)] there is no such
           language relating to primary benefits going to
           beneficiaries. Finally even if it were applicable,
           673-1 is merely a waiver of immunity and that statute
           addressing immunity. Permitting suits to be brought
           against state officials such as OHA board members
           however. However, in this case this waiver of
           immunity is already somewhat conceded under [HRS §]
           10-16 which unequivocally permits suits in the case of
           a breach of fiduciary duty.

                 And, as previously discussed, no claim has been
           factually asserted sufficient enough to bring a claim
           here. Thus under 673-1 is at most a standing statute
           and does not provide a standard by which plaintiff can
           legally use against defendant to establish liability.
           In other words, the statute itself does not create a
           private cause of action.

                 In conclusion, the court has reviewed
           plaintiffs’ complaint and found no allegations that
           would support their claim for breach of fiduciary duty
           as brought in their claim under [HRS § 10-16(c)].
           Therefore the defendants’ motion is granted.

           On October 12, 2011, the court entered its order

granting the motion to dismiss.       On November 8, 2011, Plaintiffs

and Hoomanawanui filed a motion for leave to file an amended

complaint pursuant to HRCP Rule 15(a) “to correct the



                                   -24-
     ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


deficiencies identified by the court[.]”          The proposed amendments

included, inter alia, adding Hoomanawanui as a plaintiff, and

stating that the alleged misapplication of funds was “in

violation of HRS §§ 10-16(c) and 708-874.”20          Plaintiffs also

changed the following allegation in their original complaint:
            11. In violation of clearly established law,
            Defendants have expended trust funds without regard to
            the blood quantum contained in the definition of
            native Hawaiians in the [HHCA] and HRS § 10-2, in
            particular as follows: [The complaint then discussed
            expenditures for the Akaka Bill, NHLC, Na Pua No#eau,
            and Alu Like.]

            The amended complaint replaced that language with the

following:
            10. In violation of H.R.S. §§ 10-16(c) and 708-874
            and said fiduciary [sic], Defendants have misapplied


      20
            HRS § 708-874 (1993) establishes and defines the offense of
misapplication of entrusted property:

            (1) A person commits the offense of misapplication of
            entrusted property if, with knowledge that he is
            misapplying property and that the misapplication
            involves substantial risk of loss or detriment to the
            owner of the property or to a person for whose benefit
            the property was entrusted, he misapplies or disposes
            of property that has been entrusted to him as a
            fiduciary or that is property of the government or a
            financial institution.

            (2) “Fiduciary” includes a trustee, guardian, personal
            representative, receiver, or any other person acting
            in a fiduciary capacity, or any person carrying on
            fiduciary functions on behalf of a corporation or
            other organization which is a fiduciary.

            (3) To “misapply property” means to deal with the
            property contrary to law or governmental regulation
            relating to the custody or disposition of that
            property; “governmental regulation” includes
            administrative and judicial rules and orders as well
            as statutes and ordinances.

            (4) Misapplication of property is a misdemeanor.

                                    -25-
    ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


           said trust funds in the following manner:

           11. First, without restricting the use of said trust
           funds to the trust purpose of the betterment of the
           condition of native Hawaiians of not less than one-
           half part of the blood, Defendants have contributed a
           portion of said trust funds to organizations whose
           purpose is the betterment of the conditions of
           Hawaiians without regard to blood quantum or status as
           beneficiaries of the trust, specifically, but not
           limited to the following:

           [] Defendants have expended trust funds for the
           support of the [NHLC, Na Pua No#eau, and Alu Like]
           which funds are permitted to be and have been expended
           for the benefit of non-beneficiary Hawaiians.

           . . . .

           12. Second: Defendants have misapplied trust funds
           by using a portion of said trust funds for the purpose
           of eliminating or diluting the beneficiary blood
           quantum established by the [HHCA] and H.R.S. § 10-2,
           specifically, but not limited to the following:
                 a. Defendants have expended trust funds
           lobbying for, and in support of, passage of federal
           and state legislation purporting to create a native
           Hawaiian governing entity to be established by persons
           of aboriginal Hawaiian ancestry without regard to the
           blood quantum requirements[.]

           The OHA trustees opposed the motion, arguing that the

amended complaint was virtually identical to the original

complaint.   The circuit court held a hearing on November 28, 2011

and agreed with the OHA trustees that the proposed amendments

“would be futile, that essentially, the amendments do not

establish or state a claim, and secondly, the Court believes

procedurally the amendment is to a matter that’s already been

dismissed, otherwise, we have eternal filings of motions to amend

at this point on a matter that’s already been dismissed.”             On

December 2, 2011, the circuit court entered a written order

denying Plaintiffs’ motion to file the amended complaint.             On

                                   -26-
     ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


December 6, 2011, the circuit court entered a final judgment

against Plaintiffs and in favor of all the OHA trustee

defendants.

D.    Appeal

            Plaintiffs21 timely filed a notice of appeal on

December 29, 2011.      On September 24, 2012, we granted Plaintiffs’

application for a mandatory and discretionary transfer of their

appeal from the ICA to this court.

            As stated supra, Plaintiffs raise two points of error

in their appeal:
            (1) Whether the Court below erred in dismissing the
            complaint for failure to state a claim?

            (2) Whether dismissal is appropriate on grounds of res
            judicata or collateral estoppel?

            In response, the OHA trustees argue that the circuit

court’s dismissal was proper because: (1) HRS chapter 673 is

inapplicable to the claims, (2) the Plaintiffs failed to assert

facts demonstrating that the OHA trustees abused their discretion



      21
            The notice of appeal included Hoomanawanui as a “proposed
additional plaintiff,” and Hoomanawanui is listed in the opening brief as an
appellant. However, Hoomanawanui was not named as a plaintiff in the
complaint. Although Hoomanawanui was named as a plaintiff in the proposed
first amended complaint, the circuit court denied Plaintiffs’ request to file
that amended complaint. Accordingly, Hoomanawanui is not a proper party to
the instant appeal insofar as he was never a party to the action below. See
Keahole Defense Coal., Inc. v. Bd. of Land and Natural Res., 110 Hawai#i 419,
428, 134 P.3d 585, 594 (2006) (“Generally, the requirements of standing to
appeal are: (1) the person must first have been a party to the action; (2) the
person seeking modification of the order or judgment must have had standing to
oppose it in the trial court; and (3) such person must be . . . one who is
affected or prejudiced by the appealable order.” (emphasis added) (citation,
emphasis, and quotation marks omitted)).

                                    -27-
     ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


by expending funds for the challenged programs, (3) the

Plaintiffs have not explained how incidental benefits to non-

native Hawaiians render the expenditures to be outside the OHA

trustees’ discretion, and (4) the Plaintiffs’ claim for breach of

trust under state law is barred by collateral estoppel.

                        II.   Standards of Review

A.    Motion to Dismiss

            A circuit court’s ruling on a motion to dismiss is

reviewed de novo.     Sierra Club v. Dep’t of Transp., 115 Hawai#i

299, 312, 167 P.3d 292, 305 (2007).         It is well-established that
            [a] complaint should not be dismissed for failure to
            state a claim unless it appears beyond doubt that the
            plaintiff can prove no set of facts in support of his
            or her claim that would entitle him or her to relief.
            [The appellate court] must therefore view a
            plaintiff’s complaint in a light most favorable to him
            or her in order to determine whether the allegations
            contained therein could warrant relief under any
            alternative theory. For this reason, in reviewing [a]
            circuit court’s order dismissing [a] complaint . . .
            [the appellate court’s] consideration is strictly
            limited to the allegations of the complaint, and [the
            appellate court] must deem those allegations to be
            true.

Baptiste, 115 Hawai#i at 24, 165 P.3d at 925 (some brackets in

original and some added) (quoting In re Estate of Rogers, 103

Hawai#i 275, 280-81, 81 P.3d 1190, 1195-96 (2003)).            “However, in

weighing the allegations of the complaint as against a motion to

dismiss, the court is not required to accept conclusory

allegations on the legal effect of the events alleged.”              Pavsek

v. Sandvold, 127 Hawai#i 390, 403, 279 P.3d 55, 68 (App. 2012)


                                    -28-
     ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


(quoting Marsland v. Pang, 5 Haw. App. 463, 474, 701 P.2d 175,

186 (1985)).

B.    Motion for Leave to Amend the Complaint

            “Orders denying motions for leave to amend a complaint

are reviewed for an abuse of discretion.”          Jou v. Dai-Tokyo Royal

State Ins. Co., 116 Hawai#i 159, 163, 172 P.3d 471, 475 (2007)

(quoting Office of Hawaiian Affairs v. State, 110 Hawai#i 338,

351, 133 P.3d 767, 780 (2006)).

                             III.   Discussion

A.    Plaintiffs’ complaint fails to state a claim

            Plaintiffs and the OHA trustees agree that HRS § 10-3

requires that certain trust funds “be held and used solely

. . . for the betterment of the conditions of native Hawaiians.”

However, they disagree regarding the extent to which this

provision limits the OHA trustees’ discretion over such funds.

Specifically, the Plaintiffs argue that the trustees may not

expend funds on programs that provide benefits to Hawaiians

without regard to blood quantum.         In contrast, the OHA trustees

argue that they have broad discretion in determining which

expenditures benefit native Hawaiians, even if those expenditures

also benefit Hawaiians.

            Because these arguments largely rely on the

interpretation of the term “solely” in HRS § 10-3, a review of


                                    -29-
    ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


the origins of that term is instructive.

           The term “solely” does not appear in § 5(f)’s mandate

that public trust lands be held in a trust for, inter alia, “the

betterment of the conditions of native Hawaiians[.]”            Rather, it

appears only in HRS § 10-3.       The legislative history of HRS § 10-

3, however, does not shed much light on the legislature’s intent

with regard to that term.      In the 1979 legislative session, all

but the final draft of the legislation that established HRS

chapter 10 – House Bill 890 – excluded the term “solely.”             Early

drafts required that the pro rata portion of the public land

trust be “held as a public trust for native Hawaiians[,]” see

H.B. 890, H.D. 1, S.D. 1, 10th Leg., Reg. Sess. (1979), or “held

and used as a public trust for the betterment of the conditions

of native Hawaiians[,]” see H.B. 890, H.D. 1, S.D. 2, 10th Leg.,

Reg. Sess. (1979); H.B. 890, H.D. 1, S.D. 3, 10th Leg., Reg.

Sess. (1979).

           A 1979 Senate Judiciary Committee report that

accompanied Senate Draft 2 of House Bill 890 touched on the issue

of the pro rata portion being used for native Hawaiians or the

larger group, Hawaiians:
                 C. Differentiation of the Public Trusts –- for
           Native Hawaiians and for Hawaiians. There appears to
           be some concern among some who profess to qualify by
           blood quantum as “native Hawaiian” that the public
           funds to be availed “pro rata” from the “lands and
           income” under the Admission Act must be utilized only
           to benefit “native Hawaiians,” and not the more
           extensive group of “Hawaiians.”

                                   -30-
    ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


                 Your Committee notes that the Admission Act does
           expressly state that one of the five public trust
           purposes is the “betterment of the conditions of
           native Hawaiians.” In that regard, a pro rata
           apportionment of such funds allocated for that public
           trust purpose must, by definition, be used for the
           “betterment of the conditions of native Hawaiians.”
           Conversely, such pro rata portion of the section 5(f)
           public trust is not available for use by the Office of
           Hawaiian Affairs for the “betterment of conditions” of
           the larger group, “Hawaiians.”

                 Your Committee observes, however, that such
           restriction need not apply to any other appropriation
           that the legislature may make. Also, as with any
           other public or charitable trust, the courts in the
           exercise of cy pres may appropriately utilize trust
           res for a similar trust purpose should that day come
           when the trust purpose, “betterment of conditions,” is
           achieved.


S. Stand. Comm. Rep. No. 784, in 1979 Senate Journal, at 1356

(some emphases added).

           Thus, based on that committee report, the Senate

Judiciary Committee intended for OHA’s expenditure of the pro

rata portion of the public land trust to fulfill a specific

purpose among those set forth in § 5(f); that is, that the pro

rata portion be used for the “betterment of the conditions of

native Hawaiians” as opposed to all Hawaiians.           However, the

Senate Judiciary Committee did not add the term “solely” in

Senate Draft 2; rather, Senate Draft 2 stated that the pro rata

portion of the public land trust “shall be held and used as a

public trust for the betterment of the conditions of native

Hawaiians.”   See H.B. 890, H.D. 1, S.D. 2, 10th Leg., Reg. Sess.

(1979).   This language remained in Senate Draft 3.          See H.B. 890,


                                   -31-
    ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


H.D. 1, S.D. 3, 10th Leg., Reg. Sess. (1979).

           The term “solely” appeared for the first time in the

conference committee draft, which reflects the current § 10-3

language that the pro rata portion of the funds derived from the

public land trust “shall be held and used solely as a public

trust for the betterment of the conditions of native Hawaiians.”

See H.B. 890, H.D. 1, S.D. 3, C.D. 1, 10th Leg., Reg. Sess.

(1979) (emphasis added).      The conference committee report that

accompanied that draft, however, did not make any reference to

the addition of the word “solely.”        See Conf. Comm. Rep. No. 77,

in 1979 Senate Journal, at 997-1001; Conf. Comm. Rep. No. 76, in

1979 House Journal, at 1131-35.

           Moreover, the legislature’s subsequent amendments to

chapter 10 indicate that lawmakers did not consider the term

“solely” to be significant.       In 1990, the legislature – via Act

304 – amended HRS § 10-3 in part by deleting the provision:             “A

pro rata portion of all funds derived from the public land trust

. . . shall be held and used solely as a public trust for the

betterment of the conditions of native Hawaiians.”           1990 Haw.

Sess. Laws Act 304, § 4 at 949 (emphasis added).           Act 304 also

amended HRS § 10-13.5 to provide that “[t]wenty per cent of all

revenue derived from the public land trust shall be expended by

[OHA] for the betterment of the conditions of native Hawaiians.”


                                   -32-
     ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


1990 Haw. Sess. Laws Act 304, § 7 at 951.          Thus, Act 304 removed

the term “solely” from chapter 10, but committee reports do not

mention or explain this particular change.           See Conf. Comm. Rep.

No. 91, in 1990 House Journal, at 800-01.          In fact, the omission

did not appear material to the legislation’s purpose, which

included “clarify[ing] the revenues derived from the public land

trust which shall be considered to establish the amount of

funding to [OHA] for the purpose of the betterment of the

conditions of native Hawaiians[.]”22         1990 Haw. Sess. Laws Act

304, § 1 at 947-48.

            In 1997, the legislature further amended chapter 10 to

add a new section that appropriated “[i]nterim” funds for the pro

rata portion of the public land trust “for expenditure by [OHA]

for the betterment of the conditions of native Hawaiians” for the

1997-98 and 1998-99 fiscal years.          1997 Haw. Sess. Laws Act 329,




      22
            The legislature enacted Act 304 as a response to this court’s
decision in Yamasaki, 69 Haw. 154, 737 P.2d 446. 1990 Haw. Sess. Laws Act
304, § 1 at 947. Yamasaki involved a lawsuit by OHA against several state
officials and a public corporation; OHA “felt the State was not allocating
twenty per cent of all funds derived from the public land trust to OHA as
required by HRS § 10-13.5.” 69 Haw. at 157, 165, 737 P.2d at 448, 453. The
circuit court denied the defendants’ motion to dismiss, id. at 157, 737 P.2d
at 448, and on interlocutory appeal, this court reversed, concluding that the
claims involved non-justiciable political questions. Id. at 167-75, 737 P.2d
at 454-58; see also Office of Hawaiian Affairs, 96 Hawai#i at 393 n.6, 31 P.3d
at 906 n.6 (noting that, in Yamasaki, no ruling could be made because “the
construction of the term ‘funds’ [as used in HRS § 10–13.5] . . . constituted
a non-justiciable political question because the legislature had not provided
judicially manageable standards”).

                                    -33-
     ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


§ 2 at 958 (emphasis added).23       In 2001, this court invalidated

and “effectively repealed” Act 304 as conflicting with federal

law regarding airport revenue.        Office of Hawaiian Affairs, 96

Hawai#i at 399, 401, 31 P.3d at 912, 914.          The invalidity of Act

304 thus reinstated the “immediately preceding version” of

chapter 10.    Id. at 400, 31 P.3d at 913.        Thus, HRS § 10-3 has

since reflected its original language, which requires that the

pro rata portion of the public land trust be “used solely as a

public trust for the betterment of the conditions of native

Hawaiians.”    HRS § 10-3 (2009) (emphasis added).24         In sum, the

legislative history and treatment of chapter 10 indicate that

lawmakers did not view the term “solely” to be significant in


      23
            The amendment, which the legislature apparently passed in
anticipation of Act 304 being invalidated, discussed infra, provided:

            Notwithstanding the definition of revenue contained in
            this chapter and the provisions of section 10–13.5,
            and notwithstanding any claimed invalidity of Act 304,
            Session Laws of Hawai#i 1990, the income and proceeds
            from the pro rata portion of the public land trust
            under article XII, section 6 of the state constitution
            for expenditure by the office of Hawaiian affairs for
            the betterment of the conditions of native Hawaiians
            for each of fiscal year 1997–1998 and fiscal year
            1998–1999 shall be $15,100,000.

1997 Haw. Sess. Laws Act 329, § 2 at 958 (emphasis added). See Office     of
Hawaiian Affairs, 110 Hawai#i at 344, 133 P.3d at 773 (stating that the
legislature added the aforementioned section to HRS chapter 10 via Act    329
“[b]ecause of the concerns about the effect of [a circuit court ruling    that
OHA was entitled to revenues from various sources] and [in recognition    of] the
potential invalidity of section 16 of Act 304”).
      24
            The 1997 amendment that appropriated interim funds “for
expenditure by the office of Hawaiian affairs for the betterment of the
conditions of native Hawaiians,” codified at HRS § 10-13.3, is still contained
in the HRS.

                                    -34-
     ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


describing OHA’s expenditures of the pro rata portion of the

public land trust.

            In arguing that the trustees must expend trust funds

exclusively for the benefit of native Hawaiians, Plaintiffs

largely rely on common law trust principles.           Under the common

law of trusts, “[e]xcept as otherwise provided in the terms of

the trust, a trustee has a duty to administer the trust solely in

the interest of the beneficiaries, or solely in furtherance of

its charitable purpose.”       Restatement (Third) of Trusts § 78

(2007) (emphasis added).       Known as the “duty of loyalty,” id.,

this standard appears consistent with the language in HRS § 10-

3(1) that the pro rata portion of the public trust fund be used

“solely as a public trust for the betterment of the conditions of

native Hawaiians.”      HRS § 10-3(1) (emphasis added).

            Under the duty of loyalty, a “trustee has a duty to the

beneficiaries not to be influenced by the interest of any third

person or by motives other than the accomplishment of the

purposes of the trust.”       Restatement (Third) of Trusts § 78 cmt.

f.   Thus, it is improper for the trustee to enter into

transactions “either for the purpose of benefiting a third person

(whether or not a party to the transaction) rather than the trust

estate or for the purpose of advancing an objective other than

the purposes of the trust.”        Id. (emphases added).      The duty of


                                    -35-
    ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


loyalty has also been summarized as follows:
                 A trustee is under a duty to the beneficiary of
           the trust to administer the trust solely in the
           interest of the beneficiary. The trustee must exclude
           all self-interest, as well as the interest of a third
           party, in his administration of the trust solely for
           the benefit of the beneficiary. The trustee must not
           place himself in a position where his own interests or
           that of another enters into conflict, or may possibly
           conflict, with the interest of the trust or its
           beneficiary. Put another way, the trustee may not
           enter into a transaction or take or continue in a
           position in which his personal interest or the
           interest of a third party is or becomes adverse to the
           interest of the beneficiary.

George Gleason Bogert & George Taylor Bogert, The Law of Trusts

and Trustees [hereinafter, Bogert] § 543, at 218 (2d ed. Revised

1993) (emphases added).

           Generally, a trustee’s “power is discretionary except

to the extent its exercise is directed by the terms of the trust

or compelled by the trustee’s fiduciary duties.”           Restatement

(Third) of Trusts § 87 cmt. a; Day II, 616 F.3d at 926.              “Even in

cases of what are often called ‘mandatory’ powers or provisions,

for which trustee compliance is required . . . , the trustee

often has some discretionary authority and responsibility in

important matters of detail and implementation.”           Restatement

(Third) of Trusts § 87 cmt. a.       For example, a trust may require

the sale of certain property.       If the trust does not provide any

further requirements as to how the property is to be sold, the

trustee may “exercise fiduciary judgment with respect to the

timing . . . , price, and other terms of the sale.”            Id.


                                   -36-
    ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


           “When a trustee has discretion with respect to the

exercise of a power, its exercise is subject to supervision by a

court only to prevent abuse of discretion.”          Restatement (Third)

of Trusts § 87.    Where discretionary power is given to the

trustee, “the court will not interfere unless the trustee in

exercising or failing to exercise the power acts dishonestly, or

with an improper even though not a dishonest motive, or fails to

use his judgment, or acts beyond the bounds of a reasonable

judgment.”   Dowsett v. Hawaiian Trust Co., 47 Haw. 577, 581, 393

P.2d 89, 93 (1964) (quoting Restatement (Second) of Trusts § 187

cmt. e (1959)); Restatement (Third) of Trusts § 87 cmt. b (“A

court will not interfere with a trustee’s exercise of a

discretionary power (or decision not to exercise the power) when

that conduct is reasonable, not based on an improper

interpretation of the terms of the trust, and not otherwise

inconsistent with the trustee’s fiduciary duties[.]”).

           Based on the foregoing, the following standards apply

to the instant case.     First, a breach of the OHA trustees’ duty

to administer the public land trust solely in the interest of the

beneficiaries occurs when the trustees’ decision conflicts with

the purpose of bettering the conditions of native Hawaiians or is

made for the purpose of benefiting a non-beneficiary rather than

the trust.   Restatement (Third) of Trusts § 78 cmt. f (stating


                                   -37-
     ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


that a trustee may not enter into transactions “either for the

purpose of benefiting a third person . . . rather than the trust

estate or for the purpose of advancing an objective other than

the purposes of the trust”); Bogert § 543 (“[T]he trustee may not

enter into a transaction . . . in which his personal interest or

the interest of a third party is or becomes adverse to the

interest of the beneficiary.”).25        Under this view, an

expenditure that betters the conditions of native Hawaiians may

also simultaneously benefit the conditions of others.

            Second, because chapter 10 does not mandate how the OHA

trustees should expend trust funds to better the conditions of

native Hawaiians, the trustees have broad discretion in making

that determination.      Restatement (Third) of Trusts § 87 cmt. a



      25
            This view is consistent with Ahuna v. Dep’t of Hawaiian Home
Lands, 64 Haw. 327, 340, 640 P.2d 1161, 1169 (1982), which Plaintiffs rely on
in part for, inter alia, the proposition that “[o]ne specific trust duty is
the obligation to administer the trust solely in the interest of the
beneficiary.” In Ahuna, the Department of Hawaiian Home Lands (the
department) awarded a Hawaiian Home Lands trust beneficiary about 6.5 acres of
a 10-acre lot, withholding the remainder because the parcel would be affected
by a proposed highway. 64 Haw. at 329, 332, 640 P.2d at 1163, 1165. The
circuit court directed the department to issue a lease for the full 10 acres,
and the department appealed. 64 Haw. at 328-29, 640 P.2d at 1163.
            This court concluded that the department “must adhere to high
fiduciary duties normally owed by a trustee to its beneficiaries[,]” 64 Haw.
at 338, 640 P.2d at 1168, and that this obligation requires that the trust be
administered “solely in the interest of the beneficiary[,]” and with
“reasonable skill and care to make trust property productive[.]” 64 Haw. at
340, 640 P.2d at 1169. This court held that the department “impermissibly
weighed the interests of certain third parties” – including the State, the
County of Hawai#i, and Hawai#i taxpayers in general – when it refused to lease
the entire ten acres. 64 Haw. at 340, 342, 640 P.2d at 1169, 1171. Thus, the
department’s action – withholding part of the 10-acre parcel – was in
consideration of the interests of third parties and conflicted with the
interest of the Hawaiian Home Lands beneficiary.

                                    -38-
    ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


(stating that a trustee’s “power is discretionary except to the

extent its exercise is directed by the terms of the trust or

compelled by the trustee’s fiduciary duties”).           Thus, the OHA

trustees’ expenditures are to be reviewed for abuse of

discretion, which occurs when a trustee “has acted unreasonably -

that is, beyond the bounds of a reasonable judgment.”               Id. § 87

cmt. c.

           Plaintiffs’ complaint did not allege that the OHA

trustees violated any of these principles.          The complaint

asserted that the OHA trustees violated “clearly established law”

by expending trust funds “without regard to the blood quantum” as

defined in the HHCA and HRS § 10-2, as follows:
           a. Defendants expended trust funds lobbying for, and
           in support of, passage of proposed federal legislation
           known as the “Akaka Bill,” in its various forms
           beginning in 1999 through and including 2010,
           purporting to create a Native Hawaiian Governing
           Entity to be established by persons of aboriginal
           Hawaiian ancestry without regard to the blood quantum
           requirements of the [HHCA] and H.R.S. [§] 10-2;

           b. Defendants have expended trust funds for the
           support of the Native Hawaiian Legal Corporation which
           funds are permitted to be expended for the benefit of
           Hawaiians without regard to the blood quantum.

           c. Defendants have expended trust funds for the
           support of Na Pua No#eau Education Program which funds
           are permitted to be expended for the benefit of
           Hawaiians without regard to the blood quantum.

           d. Defendants have expended trust funds for the
           support of Alu Like which funds are permitted to be
           expended for the benefit of Hawaiians without regard
           to the blood quantum.

           e. Defendants have expended trust funds for other
           uses and purposes in which the primary benefits were
           not enjoyed by beneficiaries, and the benefits to


                                   -39-
    ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


           nonbeneficiaries detracted from and/or reduced the
           benefits available to be enjoyed by the
           beneficiaries[.]

           On appeal, Plaintiffs argue that the circuit court

erred in ruling that the complaint failed to state a breach of

fiduciary duty claim and erroneously determined that “expenditure

of funds without regard to blood quantum is not a per se

violation of the trust[.]”      Plaintiffs argue that because the

status as a beneficiary of the trust is defined with regard to

blood quantum, expenditures “without regard to blood quantum are

expenditures without regard to status as beneficiary, in

violation of the duty to administer the trust in the sole

interest of the native Hawaiian beneficiaries.”

           However, viewed against the foregoing trust principles,

Plaintiffs’ allegations fail to state a claim.           Plaintiffs merely

alleged that the OHA trustees expended trust monies for programs

that are “permitted” to use such funds “for the benefit of

Hawaiians without regard to the blood quantum” and that such

“unlawful expenditures . . . have diminished the funds available

to be expended for betterment of the conditions of the ‘native

Hawaiian’ beneficiaries[.]”       However, the complaint does not

allege that the OHA trustees’ spending decisions were made for

any purpose other than benefiting native Hawaiians.             Neither does

the complaint allege that the expenditures were in conflict with

or adverse to the interests of native Hawaiians.           Also missing

                                   -40-
    ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


from the complaint are any factual allegations that the

expenditures were in furtherance of programs that do not benefit

native Hawaiians.     Accordingly, Plaintiffs’ complaint failed to

state a breach of fiduciary duty claim under HRS § 10-16(c).26

           While Plaintiffs rely heavily on common law principles

that trustees must administer the trust “solely in the interest

of the beneficiaries,” Plaintiffs also urge this court to impose

on OHA another standard, that is, to “administer said trust in

the sole interest of the beneficiaries, except for collateral

benefits to nonbeneficiaries, so long as the primary benefits of

any action is [sic] enjoyed by beneficiaries, and the collateral

benefits do not detract from nor reduce the benefits enjoyed by

the beneficiaries.”     As the circuit court noted, the above

language is borrowed from HRS § 673-1, which governs the State’s

waiver of immunity for breaches of trust or fiduciary duty


     26
            This is not to say that the OHA trustees’ expenditures are
shielded from legal challenges. Indeed, while the OHA trustees are afforded
broad discretion over trust funds, such discretion is nonetheless subject to
review. See Dowsett, 47 Haw. at 581, 393 P.2d at 93 (stating that where a
trustee has discretionary power, “the court will not interfere unless the
trustee in exercising or failing to exercise the power acts dishonestly, or
with an improper even though not a dishonest motive, or fails to use his
judgment, or acts beyond the bounds of a reasonable judgment”). However, even
under the generous principles applied in construing a complaint subject to a
motion to dismiss, see Baptiste, 115 Hawai#i at 24, 165 P.3d at 925,
Plaintiffs’ allegations in the instant case are broad and conclusory.
Accordingly, absent more specific factual allegations regarding the trustees’
expenditures, Plaintiffs’ complaint is insufficient to survive a motion to
dismiss. Cf. Pavsek, 127 Hawai#i at 403; Clinton v. Enter. Rent-A-Car Co.,
977 A.2d 892, 895 (Del. 2009) (“We do not . . . simply accept conclusory
allegations unsupported by specific facts, nor do we draw unreasonable
inferences in the plaintiff’s favor.”).


                                    -41-
    ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


regarding, inter alia, the native Hawaiian public trust.

           This standard is inapplicable here.         First, Plaintiffs’

claims are not brought under HRS chapter 673.          Second, even if

Plaintiffs asserted allegations pursuant to chapter 673,

Plaintiffs neither allege nor appear to have met the chapter’s

procedural requirements to exhaust all available administrative

remedies and give at least sixty days written notice.            See HRS

§ 673-3 (“Before an action may be filed in circuit court under

this chapter, the party filing suit shall have exhausted all

administrative remedies available, and shall have given not less

than sixty days written notice prior to filing of the suit that

unless appropriate remedial action is taken suit shall be

filed.”); Office of Hawaiian Affairs, 110 Hawai#i at 359, 133

P.3d at 788 (“A plain reading of the statute [HRS § 673-3]

indicates that administrative remedies must be exhausted and

written notification of not less than sixty days must be given.”

(emphasis in original)).

           Third, HRS § 673-1 expressly provides that it is not

applicable to OHA trustees.       As referenced above, HRS § 673-1(a)

provides that the State waives its immunity for claims against

the State for breach of the native Hawaiian public trust under

article XII, sections 4, 5, and 6 of the Hawai#i Constitution.

The standard that Plaintiffs urge this court to adopt, however,


                                   -42-
     ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


appears in subsection (b) of HRS § 673-1, which sets forth claims

that are not covered under the State’s waiver, including certain

claims against OHA:
            This waiver shall not apply to the following:

            (1) The acts or omissions of the State’s officers and
            employees, even though such acts or omissions may not
            realize maximum revenues to the Hawaiian home lands
            trust and native Hawaiian public trust, so long as
            each trust is administered in the sole interest of the
            beneficiaries; provided that nothing herein shall
            prevent the State from taking action which would
            provide a collateral benefit to nonbeneficiaries, but
            only so long as the primary benefits are enjoyed by
            beneficiaries, and the collateral benefits do not
            detract from nor reduce the benefits enjoyed by the
            beneficiaries;

            (2) Any claim for which a remedy is provided elsewhere
            in the laws of the State; and

            (3) Any claim arising out of the acts or omissions of
            the members of the board of trustees, officers and
            employees of the office of Hawaiian affairs, except as
            provided in section 10-16.[27]

HRS § 673-1(b) (emphases added).

            Plaintiffs concede that HRS § 673-1 does not apply to

OHA trustees, but suggest that the aforementioned standard as

outlined in HRS § 673-1(b) should apply as “a matter of reason

and common sense.”      However, Plaintiffs do not cite any authority

requiring the OHA trustees to follow such a standard.                Moreover,

nothing in HRS chapter 10, the Hawai#i Constitution, or § 5(f) of

the Admission Act requires the application of the HRS § 673-1


      27
            HRS § 10-16(c) provides, in relevant part, that “[i]n matters of
misapplication of funds and resources in breach of fiduciary duty, board
members shall be subject to suit brought by any beneficiary of the public
trust entrusted upon the office, either through the office of the attorney
general or through private counsel.”

                                    -43-
     ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


test in this context.      Accordingly, the standard articulated in

HRS § 673-1 does not apply.

B.    The circuit court did not abuse its discretion in denying
      the Plaintiffs’ motion to amend

            Plaintiffs next contend that to the extent that the

complaint was defective, the circuit court erred in denying their

motion to amend the complaint.        HRCP Rule 15(a) (2009), which

governs Plaintiffs’ motion to amend their complaint, provides in

relevant part:
            A party may amend the party’s pleading once as a
            matter of course at any time before a responsive
            pleading is served or, if the pleading is one to which
            no responsive pleading is permitted and the action has
            not been placed upon the trial calendar, the party may
            so amend it at any time within 20 days after it is
            served. Otherwise a party may amend the party’s
            pleading only by leave of court or by written consent
            of the adverse party; and leave shall be freely given
            when justice so requires.

(Emphasis added).

            This court has explained that,
            in the absence of any apparent or declared reason —
            such as undue delay, bad faith or dilatory motive on
            the part of the movant, repeated failure to cure
            deficiencies by amendments previously allowed, undue
            prejudice to the opposing party by virtue of allowance
            of the amendment, futility of amendment, etc. — the
            leave sought should, as HRCP Rule 15(a) requires, be
            “freely given.”

Kamaka v. Goodsill Anderson Quinn & Stifel, 117 Hawai#i 92, 112,

176 P.3d 91, 111 (2008) (citation and brackets omitted).

            Insofar as HRCP Rule 15(a) is substantively similar to

Federal Rules of Civil Procedure (FRCP) 15(a), “this court has


                                    -44-
    ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


looked to the general standard applied by federal courts in

interpreting this rule.”      Office of Hawaiian Affairs, 110 Hawai#i

at 365, 133 P.3d at 794 (citing Gonsalves v. Nissan Motor Corp.

in Hawai#i, Ltd., 100 Hawai#i 149, 160, 58 P.3d 1196, 1207

(2002)).   In doing so, this court has stated that:
           [W]here the proposed amendments to a complaint are,
           inter alia, futile, a court may deny a motion for
           leave to file the amended complaint. Federal courts
           have further explained that an amendment to a pleading
           is futile if the proposed claim could not withstand a
           motion to dismiss for failure to state a claim
           pursuant to FRCP Rule 12(b)(6).

Id. (citations, quotation marks, and brackets omitted).

           Plaintiffs’ proposed amended complaint replaced the

reference in the original complaint to HRS § 673-1 and instead

stated that the OHA trustees owed a fiduciary duty “to use said

trust funds for the betterment of the conditions of native

Hawaiians as defined in the [HHCA] and H.R.S. § 10-2[.]”             The

proposed amended complaint also changed the following allegation

in their original complaint:
           11. In violation of clearly established law,
           Defendants have expended trust funds without regard to
           the blood quantum contained in the definition of
           native Hawaiians in the [HHCA] and HRS § 10-2, in
           particular as follows: [The complaint then discussed
           expenditures for the Akaka Bill, NHLC, Na Pua No#eau,
           and Alu Like.]

           The amended complaint replaced that language with the

following:
           10. In violation of H.R.S. §§ 10-16(c) and 708-874
           and said fiduciary [sic], Defendants have misapplied
           said trust funds in the following manner:


                                   -45-
    ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


           11. First, without restricting the use of said trust
           funds to the trust purpose of the betterment of the
           condition of native Hawaiians of not less than one-
           half part of the blood, Defendants have contributed a
           portion of said trust funds to organizations whose
           purpose is the betterment of the conditions of
           Hawaiians without regard to blood quantum or status as
           beneficiaries of the trust, specifically but not
           limited to the following:

           [] Defendants have expended trust funds for the
           support of the [NHLC, Na Pua No#eau, and Alu Like]
           which funds are permitted to be and have been expended
           for the benefit of non-beneficiary Hawaiians.

           . . . .

           12. Second: Defendants have misapplied trust funds
           by using a portion of said trust funds for the purpose
           of eliminating or diluting the beneficiary blood
           quantum established by the [HHCA] and H.R.S. § 10-2,
           specifically, but not limited to the following:
                 a. Defendants have expended trust funds
           lobbying for, and in support of, passage of federal
           and state legislation purporting to create a native
           Hawaiian governing entity to be established by persons
           of aboriginal Hawaiian ancestry without regard to the
           blood quantum requirements of the [HHCA] and H.R.S.
           [§] 10-2 which entity or entities are intended to
           eventually assume control over trust funds and other
           assets[.]

           The amended complaint also fails to state a claim for

breach of fiduciary duty insofar as it did not include any

allegations that the OHA trustees were using the pro rata portion

of the public trust funds for the purpose of benefiting those of

non-native Hawaiian ancestry rather than native Hawaiians, nor

did it allege that native Hawaiians did not benefit from the

challenged expenditures.      Again, in light of the broad discretion

afforded to the trustees, the conclusory allegations in the

amended complaint, without more, are insufficient to state a

claim.


                                   -46-
     ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


            Moreover, to the extent that the amended complaint

alleges a claim under HRS § 708-874,28 such an amendment is

futile because the statute does not create a private cause of

action for Plaintiffs to enforce.            HRS § 708-874, which

establishes the criminal offense of “misapplication of entrusted

property,” does not expressly authorize a private party to sue.

In Reliable Collection Agency v. Cole, 59 Haw. 503, 584 P.2d 107

(1978), this court adopted the United States Supreme Court’s

factors in Cort v. Ash, 422 U.S. 66 (1975), “[i]n determining

whether a private remedy is implicit in a statute not expressly

providing one[.]”     Reliable, 59 Haw. at 507, 584 P.2d at 109


      28
            HRS § 708-874 provides:

            (1) A person commits the offense of misapplication of
            entrusted property if, with knowledge that he is
            misapplying property and that the misapplication
            involves substantial risk of loss or detriment to the
            owner of the property or to a person for whose benefit
            the property was entrusted, he misapplies or disposes
            of property that has been entrusted to him as a
            fiduciary or that is property of the government or a
            financial institution.

            (2) “Fiduciary” includes a trustee, guardian, personal
            representative, receiver, or any other person acting
            in a fiduciary capacity, or any person carrying on
            fiduciary functions on behalf of a corporation or
            other organization which is a fiduciary.

            (3) To “misapply property” means to deal with the
            property contrary to law or governmental regulation
            relating to the custody or disposition of that
            property; “governmental regulation” includes
            administrative and judicial rules and orders as well
            as statutes and ordinances.

            (4) Misapplication of property is a misdemeanor.

(Emphases added).

                                      -47-
    ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


(quoting Cort, 422 U.S. at 78).       Specifically, this court

discussed three factors in Cort:
           First, is the plaintiff one of the class for whose
           [e]special benefit the statute was enacted; that is,
           does the statute create a right in favor of the
           plaintiff? Second, is there any indication of
           legislative intent, explicit or implicit, either to
           create such a remedy or to deny one? Third, is it
           consistent with the underlying purposes of the
           legislative scheme to imply such a remedy for the
           plaintiff?

Id. (ellipses omitted) (quoting Cort, 422 U.S. at 78).              In

determining whether a statute provides a private right of action,

this court applies the first three Cort factors, “understanding

that legislative intent appears to be the determinative factor.”

Rees v. Carlisle, 113 Hawai#i 446, 458, 153 P.3d 1131, 1143

(2007) (citation omitted).

           Applying the foregoing factors, it is clear that HRS

§ 708-874 does not create a private right of action.              Notably,

the legislative history does not reflect an intent to create a

private, independent right of action.         HRS § 708-874 was

established as part of Hawaii’s Penal Code, 1972 Haw. Sess. Laws

Act 9, § 1 at 32, 106-07, and the legislature specifically

provided criminal punishment for the offense of misapplication of

entrusted property insofar as it explicitly stated that the

offense is a misdemeanor.      For those same reasons, implying a

private remedy for Plaintiffs would be inconsistent with the

underlying purposes of the legislative scheme.           In sum, no


                                   -48-
    ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


private right of action exists under HRS § 708-874, and therefore

Plaintiffs cannot state a claim under the statute.

           Accordingly, the circuit court did not abuse its

discretion in denying Plaintiffs’ motion for leave to amend their

complaint.

                             IV. Conclusion

           We hold that the circuit court did not err in granting

the OHA trustees’ motion to dismiss.        Thus, we affirm the circuit

court’s December 6, 2011 final judgment.

Walter R. Schoettle                   /s/ Mark E. Recktenwald
for petitioners
                                      /s/ Paula A. Nakayama
Robert G. Klein and
Lisa W. Cataldo                       /s/ Simeon R. Acoba, Jr.
for respondents
                                      /s/ Sabrina S. McKenna

                                      /s/ Glenn J. Kim




                                   -49-
