Department Of Precrime: HAWSCT Considers Cultural "Property" In Public Land

by Robert Thomas, InverseCondemnation, March 22, 2018

Remember the Tom Cruise/Steven Spielberg flick Minority Report? That's the one based on Philip K. Dick's short story in which the police force's PreCrime unit can presage that a citizen will to violate the law in the future, so they arrest him now even though he has committed no crime. 

That's the same vibe we get from the recent oral arguments in a case in which the Hawaii Supreme Court is being asked to resolve two fundamental questions in the latest case involving the Thirty Meter Telescope up on the top of the Big Island's Mauna Kea.  

First, whether someone can possess a cultural property interest in publicly-owned land. Flores, a native Hawaiian, asserted he had such an interest in the land on which the telescope is planned. Second, if so, whether the State land agency's consenting to the University of Hawaii's sublease of that land to the TMT puts Flores' interests in jeopardy, and thus the only way to protect that interest is for the agency to conduct an administrative trial, otherwise known as a "contested case," and not merely a public hearing in which all are invited.  

If the answers to both questions are yes, then the agency should have granted Flores' request for a contested case under the Administrative Procedures Act prior to consenting to the sublease, and its failure to do so means the sublease is void. 

We don't think there's much of a question on the first issue. The court has already decided in a series of cases that native Hawaiians can possess an interest in publicly-owned land, at least generally. The Hawaii Constitution says it, after all. We've questioned whether these type of property rights are truly property rights, but we can at least say with some confidence that they are entitlements (New Property!) and public rights, even if they do not rise to the level of private property rights. 

But that alone does not solve the puzzle, because it doesn't address the second, harder question, the one that lies at the heart of the case: whether granting the TMT a sublease actually affected Flores' rights. The Hawaii Supreme Court has never made clear whether in order to be granted an administrative trial, a person need only show that their rights may be affected by the agency action, or whether those rights must actually be affected by the action.  

That's a critical difference, and one which the Justices focused on intently at last week's oral arguments. If the standard is "might be" affected as Flores argued, you can easily see how there will be almost no limit to these demands, because it isn't too difficult to imagine how nearly every agency action could conceivably affect someone's rights, especially when the court construes these rights as broadly as it does Hawaiian and environmental interests. If, however, the standard is "actually" affected, the scope of when agencies must hold contested cases will be significantly narrower.

Another related issue is whether it is the claimant's burden to make a showing of how the agency action specifically will jeopardize her interests, or is it enough for the claimant to make the demand, at which point it becomes the agency's burden to demonstrate there's no possible way that its actions might affect those interests, something that the court hinted at in its last TMT decision? 

And that's where our Minority Report vibe comes from. Because it appears to us that instead of showing how the sublease to the TMT has actually impacted his interests, at best Flores is arguing that -- despite the law and the sublease itself prohibiting the TMT from interfering -- it may do so in the future, so he should be provided with process now. PreCrime. 

With that background, stream the recording here, or download the mp3 file at the Judiciary website and listen.

The Justices zeroed right in during the agency's and the University's opening arguments, spending a majority of the time quizzing both the Solicitor General and the UH's counsel whether the agency's consent to the sublease actually affected Flores' rights. No, they responded, it didn't, because the sublease itself recognizes that native Hawaiian rights and practices are not affected one way or the other, and therefore his interests were not in jeopardy. Moreover, his interests could not be affected, because even without such a provision, Hawaii law requires those interests remain the same upon a transfer: 

JUSTICE MCKENNA: Is the State arguing or conceding that such a provision [a provision in the sublease requiring the TMT to protect Hawaiian practices] would be required in order to protect native Hawaiian interests?

MR. WADSWORTH: No, Your Honor. Under Pele Defense Fund, by law whatever right Mr. Flores has to access subleased land for cultural purposes remains the same ... this court has already protected native Hawaiian rights under Pele Defense Fund... 

Flores' brief was not much help, and it was noticeably light on this point, spending a lot of time arguing broadly that he has an interest in the subleased land (we don't think anyone really disputes that), then asserting the sublease affects that interest because it gives possession of the land to the TMT, and that it "would have the right to exclude those attempting to access the subleased premises." Br. at 18 (citing 25 Am. Jur. 2d Ejectment 6; Restatement (Second) of Torts § 165, but notably lacking a record cite).

That, we think, is going to be the crux of the case. And were this land anywhere but Hawaii, the brief might have a point. But this is the jurisdiction which holds that "western" notions of property such as the right to exclude don't necessarily apply to land. See Public Access Shoreline Hawaii v. Hawaii County Planning Comm'n, 79 Haw. 425, 903 P.2d 1246 (1995) (certain "western concepts" of property are "not universally applicable in Hawaii"). Under PASH and its progeny, every parcel of less than fully developed land is subject to a public easement for cultural practitioners. The only interest which the TMT got by way of the sublease was the right of possession and enjoyment of the land, both of which are by law subject to Flores' PASH interests, so he could not legally be excluded, and apparently has not been. All Flores could argue (again lacking a record cite) is that he "is likely to be excluded." Br. at 18. If TMT were to do so, that would obviously happen in the future. Flores hasn't actually been excluded and he cannot be excluded by law, so it appears very unlikely that TMT would exclude him. 

This latter point was picked up by Justice McKenna, when she emphasized that the law governs, even over contrary or silent lease terms:

JUSTICE MCKENNA: I think what Justice Pollack is asking, which I think is the same question that I am asking is that would such a provision be required in order to not require a contested case hearing? ... 

Chief Justice Recktenwald probed about what, if anything, is actually different in the way the University used the land, and how the sublessee TMT will use it:  

THE CHIEF JUSTICE: But doesn't [the TMT] have the ability to exclude Mr. Flores and other practitioners from the property? And what if they choose to exercise that in a way that's different than they way in which the University has exercised it up until now? 

This point was picked up by Justice McKenna, when she emphasized that the law governs, even over contrary or silent lease terms:

JUSTICE MCKENNA: I think what Justice Pollack is asking, which I think is the same question that I am asking is that would such a provision be required in order to not require a contested case hearing? ... 

The SG reemphasized that the TMT is prohibited by law from interfering with Flores' practices, but when asked directly by Justice Pollack whether "so wouldn't the answer to the Chief Justice's question be "no ... isn't that your position that they would not have the right to exclude native Hawaiian practitioners?," the SG responded that he could not agree because he couldn't really say whether subleasing the land will have an effect.

However, he immediately backed away from that seemingly damaging concession, arguing that merely claiming to be impacted does not trigger a contested case, because there also "must be a risk of erroneous deprivation of that right," something he argued could not happen here. This latter point was picked up by Justice McKenna, when she reemphasized that the law governs, even if the lease was silent: 

JUSTICE MCKENNA: In fact, this court has repeatedly stated as we repeated [in the Gabriel case] that a contract is presumed to include all applicable statutes and settled law related to the subject matter. So therefore, the constitution would trump any lease provision, correct? 

MR. WADSWORTH: Yes, Your Honor. 

Flores' brief identified another property interest which he claimed entitled him to a contested case, which he wisely did not press during oral argument: that because the University has an interest in the subleased land, Flores is entitled to a contested case. We view this as a pretty silly argument, because whether you get a contested case depends on whether you possess property, not someone else. Of course the University has a property interest at stake, but that doesn't mean Flores needs a trial to protect his interest, whatever it might be. That's mixing mountain apples and Kona oranges, man.  

The agency's and the University's counsel bolstered their main point that by law the sublease could not have affected Flores' interests with the argument that the only agency action which could trigger a contested case was one in which "use" of the property was at stake. Changing use of the land, as opposed to the tenant, is where Flores' rights could be affected. Because the sublease does not permit the TMT to actually build the telescope, Flores' rights are not in jeopardy. This is related to their argument that Flores' rights were already being protected in the contested case in the parallel action involving the issuance of the Conservation District Use Permit. Thus, there's no need to repeat that process again:

MR. WADSWORTH: The sublease consent won't affect Mr. Flores' right to exercise his cultural practices, and there's no risk he will be deprived of that right. At bottom, Mr. Flores' complaint is about the planned TMT observatory and its potential impact on his cultural practices. But those issues have been fully litigated and evaluated in a contested case hearing on the use permit in which Mr. Flores is also a party. In these circumstances, due process does not require another contested case hearing.

The Justices wanted to know whether it would make a difference if there wasn't another parallel admin proceeding going on in which Flores could assert his interest in the land. For example:

JUSTICE WILSON: You mentioned that there's already been a contested case hearing, and as a consequence, there's been an adjudication of whatever customary and traditional rights might apply with respect to Mr. Flores, correct?

MR. WADSWORTH: That's correct, Your Honor.

JUSTICE WILSON: Okay, so let's assume there hadn't been such a hearing. And that in fact what we had before us was the same set of facts except there hadn't been a hearing on the Conservation District Use Permit. Would your position be any different? Would you feel at that point that there'd be an argument for a contested case hearing?

MR. WADSWORTH: Well it depends on application of the Sandy Beach* test, Your Honor. Under Sandy Beach and Maui Electric, this court weighs three factors in determining whether due process requires a contested case hearing....

Recall that in the earlier case, the Supreme Court whacked the same agency and voided its approval of the construction of the telescope -- not because it failed to hold a contested case, but because it only conducted the trial after it tentatively approved the project. See our post on that case "Carts Before Horses, And Pearls Before Swine: The Hawaii Supreme Court's Fractured Rationale For Invalidating The TMT Permit."

After this ruling, the agency on remand held a contested case in which Flores is a party. The agency and the University seemed to be arguing for a form of administrative res judicata, even though neither couched it that way. To us, that seems like a dead end because if Flores' rights are being impacted by two separate agency actions, why not two contested cases?   

The SG reiterated that Flores' rights won't change whether UH holds the land or whether it is the TMT: "Mr. Flores' right to exercise his native Hawaiian cultural practices will remain the same, both under Hawaii law and the express terms of the sublease. Regardless of whether UH or [TMT] has possession of the land."

The answer here, we think, is more one of ripeness and record. There's no evidence we can see that the sublease, as written, actually and presently affects Flores' rights. It doesn't expressly prevent him from doing anything, it doesn't exclude him from the land, and indeed, it likely could not affect him because if it did, any such provision would be void. 

But might subleasing the land to the TMT somehow affect his rights? Of course. Certainly anything is possible. Our view is if that were to happen down the road, then Flores would likely have standing to challenge the lease in court in an original jurisdiction action.   

We're not going to hazard a guess about where the majority of the Justices end up. If the court denies Flores a contested case, it may do so (somewhat ironically) by reaffirming the power of PASH and similar cases which bolster Hawaiian rights. Or, we might be victims of a weakly drafted statute, which defines a "contested case" as "a proceeding in which the legal rights, duties, or privileges of specific parties are required by law to be determined after an opportunity for agency hearing," and the Justices could focus on the "to be determined" language and conclude that a person demanding a contested case doesn't need to show they are presently impacted, because the contested case itself is how you make that determination. But that's a recipe for endless agency process -- death by a thousand days -- because it would lead (as it has done here) to claimants who wish to slow walk the process segmenting their claims and demanding separate trials every time the agency makes a decision. 

In the end, we go back to our Minority Report PreCrime analogy. When a claimant doesn't put into the record any evidence that a sublessee has limited his rights, where the law prohibits the sublessee from doing so, and where there's only an allegation by the person seeking a contested case that he "is likely to be excluded" from exercising his rights, the courts should presume that the agency is acting in accordance with the law, until shown otherwise. As Chief Justice Recktenwald asked: 

THE CHIEF JUSTICE: Could you come back to my question? What if ... does it rise to the level of a protected interest if Mr. Flores is concerned that the new ... sublessee may have a different policy -- or different attitude towards allowing him to practice his cultural practices on that land? In other words, we don't know what [the TMT's] policy is going to be, they may be more restrictive, they may be, say "well, you know that on certain days of the week he can only come on once a month?"

Concern isn't enough. The fact that "we don't know what the TMT's policy is going to be" to us should resolve this case in the agency's and UH's favor; lacking more in the record, there need not have been a contested case here. When and if the TMT does something that actually interferes or threatens to interfere with Flores' practices on the land, he can always challenge that action on a ripe factual record in an original jurisdiction action. 

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*referring to Sandy Beach Defense Fund v. City Council, 733 P.2d 250 (Haw. 1989), a case under the Due Process Clause in which we were one of the counsel.