SIGN NOW, CLICK: JUSTICE FOR MAUNA KEA
WE OPPOSE HOUSE BILLS
1411 & 1565
STOP HOUSE BILLS 1411 & 156
Petition written by: Kau’i Pratt-Aquino, Mehana Kihoi & Bimo Akiona, Native Hawaiian beneficiaries of the Public Lands Trust
Aloha Hawai’i State Legislature,
Thank you very much for this opportunity to submit testimony. This submission is to express our VERY STRONG OPPOSITION TO HOUSE BILLS 1411 AND 1565. We are disappointed these two bills are being considered by the legislature when there is an active contested case ongoing for Mauna Kea on the Big Island. Unfortunately, we see these bills as an attempt by the legislature to circumvent the judicial and administrative branches to side step the Mauna Kea contested case proceedings and to force the construction of the Thirty Meter Telescope.
We respectfully urge you to STOP HB 1411 AND HB 1565 because both will be detrimental to the future of Hawai’i and will likely have unintended consequences that are harmful and will likely lead to unnecessary and wasteful litigation. These bills are against the public’s best interests and violate the public’s due process rights under the Fourteenth Amendment of the U.S. Constitution and the Hawai’i State Constitution.
We oppose House Bills 1411 & 1565 for the following reasons:
This bill is over broad and unconstitutional because it strips away the public’s right to dispute the disposition of public lands by the Department of Land and Natural Resources. The the bill is misguided and incorrect in the use of Sharma v. State, 66 Haw. 632, 673 P.2d 1030 (1983). The case law is clear. Native Hawaiians and the general public have a protected property interest in public trust lands which require due process protections under the U.S. and Hawai’i State Constitutions.
As primary guardian of public lands, the State has an “affirmative duty” to protect and conserve these lands for “the benefit of present and future generations.” HAW. CONST. ART. XI, § 1. The constitution demands accountability and transparency in the management and disposition of public lands by the state and fundamental protections for the public to assert their rights in public lands. Public lands are held in trust for the general public and Native Hawaiians. HAW. CONST. ART. XII, § 4, Admissions Act § 5(f). These lands are not for private use but for public trust purposes including the “betterment of conditions of native Hawaiians.” Admissions Act § 5(f). Thus, “native Hawaiian beneficiaries of the ceded lands trust have a ‘right to bring suit under the Hawai‘i Constitution to prospectively enjoin the State from violating the terms of the ceded lands trust.” OHA v. HCDCH, 117 Hawai‘i at 194, 177 (2009). Native Hawaiians and the public may sue the state if the disposition of public trust lands violate their right to exercise customary and traditional practices pursuant to Article XII Section 7 of the Hawai’i State Constitution. HAW. CONST. ART. XII, § 7. The general public has standing to sue the State if the disposition of public lands violates any one of the five public trust purposes under the the Admissions Act § 5(f). Admissions Act § 5(f). Here, the disposition of public lands includes the State’s ability to lease. A contested case hearing offers the public an opportunity to assert these rights outlined above. Thus, HB 1411 is a knee jerk response to address the Mauna Kea proceedings but will have unintended and harmful consequences because it will impact ALL leased lands by DLNR. Further, it will prevent the public from protecting their right in the resource. Policies such as this can not stand.
Under the 14th Amendment of the U.S. Constitution, Native Hawaiians and the general public, as beneficiaries of public lands, have a protected property interest. With that protected interest, both are entitled to a fundamentally fair hearing and an opportunity to be heard. A contested case hearing provides the public and Native Hawaiians with the appropriate venue to assert and exercise these rights. Therefore, HB 1411 violates the due process clause of the 14th Amendment of the U.S. Constitution because it prevents individuals from exercising their right altogether by getting rid of a contested case hearing mandated by Chapter 91 of the Hawaii Revised Statutes. The contested case hearing is a critical protection that is used as a check and balance over state action. It gives the public the opportunity to dispute the lease of those lands if the state’s attempt is adverse to their own right in that resource. For these reasons, the HB 1411 is short-sighted and should not proceed to prevent due process violations and wasteful litigation. Our right to a contested case for publicly leased lands is absolutely critical and must not be stripped away. Therefore, we urge you to stop HB 1411 because it is bad public policy.
We strongly oppose HB 1565 because we see it as an attempt by lawmakers to circumvent the judicial and administrative branches. HB 1565 would create special subzones for science and technology, which would include the Mauna Kea Conservation District. We do not agree with the new land use classification because it gives non commercial entities an expedited process to obtain permits. The rezoning fails to take into account the State’s trust obligation to protect customary and traditional rights pursuant to Article 12 Section 7. HAW. CONST. ART. XII, § 7. HB 1565 prioritizes science and research above customary and traditional practices. Customary and traditional practices are the priority under Hawaii’s laws; science and research have no priority at all. We are asking you to STOP marginalizing Native Hawaiian rights in public trust resources. Please honor the constitution and the State’s obligation to protect those rights.
We also reject HB 1565 because it requires mediation and prohibits contested case hearings if parties are in disagreement. As stated above, contested case hearings are an important and critical process for the public to protect their rights in public trust resources. In addition to this, the public can not obtain relief from the Circuit Court. The Circuit Court provides an important venue for parties to present evidence and testimony. In short, this bill attempts to fast track the administrative process for permits related to activities that can be classified as Research and Technology, including the construction of the Thirty Meter Telescope on Mauna Kea. We do not support this bill when there is an active contested case related to this issue presently. We ask you to reflect on the purpose of the three branches of government. What message are we sending to the public when laws like this are able to proceed. “Fight for your rights, but if the legislature does not like the outcome, it will make a law to side step the process.”
In sum, we support the existing processes in place and do not want to establish new ones. We see this bill as an attempt to circumvent the existing contested case. Therefore, we are asking for your help to stop this bill and let the contested case proceed. We ask you to respect the public’s rights and let the administrative and judicial branches do their job.
To sign the petition, click here