Image credit: http://3dtmt.tumblr.com/

By Kekailoa Perry

In October 2018, after a long legal battle, the Hawaiʻi Supreme Court gave the green light for the state Board of Land and Natural Resources to issue a permit that would allow the construction of the Thirty Meter Telescope on conservation lands on Mauna a Wākea. When the decision came down many Hawaiians, environmentalists, and experts in Hawaiian and environmental law were disgusted by the majority opinion of the court. Our guest blogger, Kekailoa Perry, provides some insight as to why the decision should be seriously questioned by the public.

A constitution is the law of the land. The second US president, John Adams, included in the 1780 Massachusetts state constitution that the society would be “governed by laws not men.” This statement is now considered a fundamental civic principle, essential for the health and stability of the republic. It means that humans are imperfect and, to avoid abuses of power and irrational or bias decision-making, we rely on a set of democratically established laws to govern our society.

Nowhere is this principle more actively utilized than in the judicial branch of government where the doctrine called stare decisis requires the courts to abide by past decisions whenever judging cases. Stare decisis is a cornerstone of the common law tradition that ensures the courts will follow a well-established line of legal reasoning when making decisions and resist the arbitrary creation of rules motivated by corruptible political or economic agendas.

Unless, of course, we are discussing the Hawaiʻi Supreme Court’s majority justices who treat stare decisis like a pestering inconvenience when dealing with constitutionally protected Hawaiian practices and the public land trust.

Case in point: The Mauna Kea-TMT decision. The timing and rationale of the Court’s decision coincidently occurred just weeks before the TMT Board of Directors were scheduled to decide on final telescope selection sites and foreshadowed the upcoming Judicial Selection Committee reappointment process for the Court’s head justice. In their apparent rush to meet the TMT Board deadlines, the Hawaiʻi Supreme Court issued a poor opinion that ignored 30 years of sound legal precedent. Is it possible that events like the TMT’s board meeting or the future judicial reappointment proceedings played a role in the Court’s hasty decision?

The majority’s decision appears motivated by an agenda that supports a small, ambitious group of international investors and a university administration eager to please their wealthy and powerful new friends. Apparently, the Court is willing to sacrifice Hawaiian culture and degrade public trust lands for a questionable lease agreement and millions of dollars in telescope observation revenues that will not benefit Hawaiʻi.

The majority’s opinion undermines well-established legal precedent by dumping the constitutional responsibility to protect Hawaiian traditional and customary practices on the backs of Hawaiians. Article XII, §7 of the constitution declares that “the State reaffirms and shall protect all rights, customarily and traditionally exercised” by native Hawaiians. With few exceptions, the case law is clear that the state and local government have the constitutional duty (burden) to protect Hawaiian practices.

The majority also undercuts Article XI, §1 known as the public trust doctrine. The public trust doctrine applies to the State’s affirmative duty to manage and protect the natural resources like Mauna Kea for Hawaiʻi’s present and future generations. Hawaiʻi’s case law on the public trust doctrine is extensive and well established.

Why then, would the Hawaiʻi Supreme Court choose to not protect the constitutional rights of native Hawaiians in the Mauna Kea case? Why put the burden on Hawaiians to prove their cultural practices are legitimate and worthy of protection? Why would the Court choose to support a telescope development that would level a sacred mountain and further damage traditional and customary areas? Where in the State constitution can we justify the destruction of culture and public trust lands for foreign investments? Where in the constitution is the University of Hawaiʻi granted the privilege to criminalize Hawaiians and the public for accessing culturally significant public lands?

The Court’s majority decision fails to answer these fundamental questions because there is no sound legal precedent to justify such actions. In fact, the majority seems to have disregarded longstanding Hawaiʻi Supreme Court decisions relating to Hawaiian rights and the public trust doctrine. Surely, Hawaiʻi’s decades long legal precedent has more persuasive authority than a construction timetable, a judicial reappointment, or a billion-dollar capital investment in science projects.

On November 19, 2018 attorney Naiwi Wurdeman representing the Mauna Kea Anaina Hou filed a motion requesting that the Court reconsider their final judgment. Attorneys IsaacMoriwake, Kapua Sproat, Melody MacKenzie and Robert Klein representing Kuaʻāina Ulu ʻAuamo, Colette Y. Machado and Dan Ahuna filed briefs supporting the motion. The attorneys argue the majority opinion “erodes Chief Justice William S. Richardson’s legacy regarding Native Hawaiian traditional and customary rights and the public trust doctrine.” The attorneys also assert that the opinion “will upset and undercut critical legal protections of Native Hawaiian rights [the] Court has recognized in a series of cases including Ka Paʻakai o Ka ʻĀina.” The Court’s response, delete a single footnote but leave the remaining language of their original opinion intact. No change, no wonder.

By refusing to apply a constitutional framework to public trust lands and Hawaiian rights, the Court is signaling that lower courts and agencies can simply grant permits and approve projects based on the popularity of the project and not based on the constitutional scrutiny found in sound judicial precedent. In essence, the majority’s opinion relocated Hawaiian rights and the public trust doctrine onto a foundation of quick sand once they decided to abandon stare decisis for faulty logic that seemed to come from outer space.

One of the Hawaiian attorneys supporting the motion for reconsideration is former HawaiʻiSupreme Court Justice, Robert Klein. Klein authored the seminal 1996 Hawaiian constitutional rights case known as PASH – Kohanaiki ʻOhana. All subsequent cases follow Klein’s well-developed precedent in PASH. Klein’s opinion followed Chief Justice Richardson’s and was a unanimous ruling. Richardson and Klein relied on judicial precedent and Hawaiian legal tradition to guide their opinions requiring state and local government to shoulder the constitutional responsibility to protect traditional and customary rights and public trust lands.

The attorneys’ motion to reconsider offered the Recktenwald Court a second chance at fixing their inconsistent ruling on Mauna Kea’s Hawaiian rights and public land trust issues. The Court edited a small part of the decision but stopped short of making any material changes that would follow the established law set by the Klein and Richardson court decisions.

By adhering to judicial precedent, the Mauna Kea case may well have been remanded to the BLNR causing interruptions that might move the TMT to La Palma or some other location. The Court’s ruling expresses some reluctance over the potential loss of the TMT project. That kind of judicial reluctance should be a serious concern for us all considering the Court’s role as the final arbiters of justice and their duty to follow the rule of law. Nevertheless, the majority seemed determined to make the TMT development happen regardless of the law or the terrible precedent their ruling now creates.

In the end, the Mauna Kea decision is especially troubling because the Hawaiʻi Supreme Court is supposed to uphold the constitution, not succumb to political and economic pressure at the expense of its constitutionally protected classes of citizens. Now that the decision is final, what will become of future Hawaiian rights or public trust doctrine cases that deserve a fair, clear minded, and judicially prudent legal review? The Mauna Kea majority opinion seems to have lessened the confidence in such a process and that is not good for either side of the issue. Perhaps this is why John Adams and others felt so strongly that this society must be governed by laws and not by the arbitrary views of a small but powerful group of men and women.

Kekailoa Perry is an associate professor of Hawaiian Studies at the University of Hawaiʻi at Mānoa, and he earned his JD at UH’s Richardson School of Law.