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LETTER: The Mountain, the Faith, the Kingdom and the Telescope

September 27, 2016, 1:18 PM HST
* Updated September 27, 1:38 PM
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letters to the editor 123Mauna Kea is the highest mountain on Earth because its height is measured from the sea floor where it began. Prior to the arrival of non-Hawaiians, the Mountain was held sacred by the Hawaiian people. The summit was considered so sacred that very few people ever entered the summit area.

Mauna Kea is a prime location for telescopes. According to Wikipedia, “the location is ideal because of its dark skies, good astronomical seeing, low humidity, and position above most of the water vapor in the atmosphere, clean air, good weather and almost equatorial location.”

Since the 1970s, the astronomy community has built 13 telescopes on Mauna Kea, almost all over the objections of the Native Hawaiian community.

The proposal to build the 18-story tall Thirty Meter Telescope seems to have been the last straw (or a least a last straw).

Public opposition catalyzed around a number of issues, including desecration of a sacred site; disruption of customary and traditional Native Hawaiian practices, including spiritual practices; ecological pollution; and endangered species.

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The opposition culminated in a physical blockade by hundreds of people that prevented the construction crew from reaching the telescope site to begin construction.

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Subsequently, the Hawai’i Supreme Court vacated the permit on the basis that the process followed by the Board of Land and Natural Resources violated the due process rights of those who sought to challenge the permit. BLNR voted to grant the permit and then held the contested case, which was supposed to precede any decision on the permit.

As a result of that ruling, BLNR initiated a new contested case and hired a hearing officer.

If you wish to read any of the documents I reference in this report as “DOC-XX,” they are found at http://dlnr.hawaii.gov/mk/mauna-kea-faq/. Click on the down arrow on the right side opposite “DOCUMENTS LIBRARY.”

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The gearing officer opened up the process for people to apply as intervenors and numerous people applied.

The University chose not to object to any of the intervention petitions. Rather than evaluate whether the intervention petitions met the requirements for intervention, the hearing officer granted intervenor status to everyone who had filed a petition and showed up at the first pre-hearing conference.

The hearing officer seemed to want to avoid anyone being denied intervenor status in order to foreclose a finding later that she had violated someone’s due process rights to be heard.

Her commitment to that Supreme Court mandate did not last very long.

In the contested case, I am representing the Temple of Lono, an ancient Hawaiian faith. The Kahuna of the Temple is also representing the temple. As one of our first acts, we filed a motion seeking a partial summary judgment on two issues:

1. the summit of Mauna Kea is held sacred by the traditional Hawaiian faith and

2. the traditional Hawaiian faith is still practiced. DOC-78.

We sought that second ruling because the astronomy community treats the traditional Hawaiian faith as no longer practiced. That same false characterization has appeared in the local media:

“So the entire belief system went underground and was lost to many, if not most, Hawaiians. That left no recognized priesthood to validate traditions and practices, leaving us with the current day reliance on historian-scholars, ancient chant references and archaeologists.”

Obviously, the Kahuna of the Temple of Lono has a very different perspective on whether there is “no recognized priesthood.” The Kahuna does understand how anxious some people are to declare the ancient faith extinct, so that they can proceed with their plans without a spiritual challenge.

The Kahuna and I prepared a response to the Peter Apo article referenced above.

Unfortunately, Civil Beat declined to publish it. They did later publish a separate piece in which the Kahuna talked about the renewal of the traditional faith that was taking place.

With the motion for a partial summary judgment on the issue of the faith’s continued existence, we hoped to settle that matter before embarking on the full-blown litigation of the hearing itself.

In response to the motion, the university filed an opposition. DOC-135. That document contained an unrestrained attack on the Temple of Lono. The essence of the attack was that the Temple refused to agree to the telescope being built on the summit of Mauna Kea because the Temple was a fundamentalist organization determined to enforce its religion on everyone else and having no concern for the harm it would do to society.

To give you a flavor of that attack, here are some passages:

The problem with fundamentalism in religion—any religion—is its intolerance and inability to compromise. Fundamentalist religion when confronted with a conflict between cooperation and conformity to doctrine 3 invariably chooses the latter, regardless of the harm it brings to the society of which it is a part. DOC-135, page 14 (emphasis in the original).

According to the university, the “Temple wants a religious servitude over all of Mauna Kea, for the purpose of advancing its own religious agenda.” DOC-135, pages 14–15.

The university accused the Temple of attempting to use the contested case to galvanize a religious movement in an unconstitutional manner and to use the case as a platform to promote the Temple’s religious agenda. DOC-135, pages 14–15.

The attempt to portray the Temple as the equivalent of ISIS in Hawai’i is so far from the actual nature of the Hawaiian faith as to be ludicrous. The foundation of the Traditional Hawaiian Faith is the Four Gods—the Ocean, the Sun, the Earth and the Fresh Water. Those elements are worshipped because they provide the staff of life, i.e., food.

The laws of the traditional faith attempt to maintain a harmonious relationship between Human activity and the Natural World, so that the needs of seven generations are considered in decision affecting the ecological systems. The practice of the faith is found in the religious practices of each family. There is nothing fanatical or even centralized in the religious practices of this faith.

Not surprisingly, the university did not provide any evidence to support their false characterization, other than baldly proclaiming the Temple’s objection to the telescope being on Mauna Kea to be a fanatical religious act.

At the hearing on the Temple’s summary judgment motion, the university offered no defense of or explanation for the attack.

At the time of the university attack, the deadline for filing pre-hearing motions had passed. The Temple filed a motion requesting the hearing officer’s permission to file a motion outside the schedule. DOC-179.

The motion the Temple sought to file was a motion to dismiss the University’s application for the permit. DOC-179, Exhibit 2.

The basis for the motion to dismiss was that the university had filed a libelous and bigoted attack on the Temple. Native Hawaiian traditional and cultural practices, including religious practices, are protected by the Hawaiian Constitution, Article XII, Section 7.

The state cannot grant a permit to an applicant who has demonstrated that they are unlikely to respect that constitutional mandate. Given the vitriolic attack by the university on the Temple, the university cannot be trusted to respect and protect the traditional Hawaiian faith and therefore, is disqualified from receiving a permit from the state.

The university objected to the Temple’s motion solely on timeliness grounds and again offered no explanation or defense of the attack on the Temple.

Having apparently forgotten her commitment to allowing everyone to be heard, the hearing officer denied the Temple’s request to file a motion. She essentially decided the disqualification issue without allowing the Temple to have its arguments heard.

We consider this ruling to be a fundamental legal error, denying due process in a manner similar to the erroneous process that led to vacating the permit the first time. From the Temple’s perspective, the rest of the proceeding will be a waste of time and money on everyone’s part because a decision to grant the permit will not withstand a legal challenge.

Subsequently, each of the parties filed a list of the issues they considered relevant to the hearing. On the Temple’s list was the question of whether the applicant university lacked the character to receive a permit, given their attack on the Temple.

In her ruling on the issues to be heard, the hearing officer omitted that issue.

Denying the Temple the opportunity once again to be heard on the disqualification issue only cemented the original error.

In her order setting the issues, the hearing officer threw out almost all the issues raised by parties objecting to the permit. The only excluded issues that she explained were related to the continued existence of the Kingdom; the existence of an operational Kingdom Government under Ali‘i Nui Mō‘i Edmund Keli‘i Silva Jr. and the Kingdom’s claim to the lands where the telescope construction is proposed.

As far as the other issues excluded, the hearing officer offered no explanations for those exclusions. The omission of such explanations prevents the party seeking to have the issue heard from pursuing a motion for reconsideration.

The failure of the hearing officer to provide any reasoned explanation for excluding numerous issues identified by the Temple and other parties is simply one more reversible error in a record already crowded with such errors.

As the representative for the Temple, I have focused this report on the Temple’s experiences. I can assure you that all the other parties have been vigorously pursuing their challenges to the permit and the process. The record of legal errors extends far beyond the bias against the Temple and in favor of the telescope demonstrated by the hearing officer in the attack episode.

As to the Kahuna’s experience in all of this, he submitted another piece to Civil Beat that they declined to publish. Big Island now will publish the piece, which will give you a picture of how all these development appear from the perspective of the Kahuna.

Although there are numerous unresolved matters, the hearing officer has apparently scheduled the hearing to begin on Oct. 11. I say “apparently” because many of the unresolved issues have to be resolved before the actual hearing can commence.

I hope this report has provided some insight into what is going on around the Mountain, the faith, the Kingdom, and the telescope.

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