Kahea: Ceded Lands Under Telescope are a Political, not Legal, Issue

Kahea: … In 2008, the Hawai'i Supreme Court ruled that under both federal and state law, the "State [has a] fiduciary duty to preserve the corpus of the public lands trust, specifically, the ceded lands, until such time as the un-relinquished claims of the native Hawaiians have been resolved[.]" OHA v. HCDCH, 117 Hawai'i 174 (2008) overruled as to federal law by OHA v. Hawai'i, 556 U.S. 163 (2009)

However, the Hawai'i Supreme Court has also ruled that the resolution of the un-relinquished claims of the Hawaiian people are "of a peculiarly political nature and therefore not meet for judicial determination" and "constitute[] a non-justiciable political question." OHA v. Yamasaki, 69 Haw. 154 (1987) In other words, resolution of these issues must occur somewhere other than the courts.

In sum, there is no legal process to resolve the un-relinquished claims of the Hawaiian people to their lands, including those crown and government lands that are Mauna Kea. The approval of the sublease for the TMT project and the conservation district use permit are predicated upon the courts being unable to directly address these issues….

read … Anti-Telescope Protesters Analysis

Court’s suspension of governor’s emergency proclamation applies only to 1 Person

SA July 23, 2019: … A state court granted today a Big Island kumu hula’s request for a temporary stay or suspension of Gov. David Ige’s emergency proclamation restricting public access to Mauna Kea. The court order, however, applies only to plaintiff Paul Kevin Neves, with conditions.

Neves of Hilo sued Ige Thursday claiming that the proclamation prevents him from practicing traditional Native Hawaiian culture.

He said he needs to go to the summit for prayer….

Luana Busby Neff, a Hawaiian cultural practitioner who has been participating in the protests at Mauna Kea for a week, said today’s court decision clears the way for others.

“That’s just really a portal for everyone else to follow, because Paul is claiming as a Native Hawaiian practitioner and is being given access to Mauna Kea, then that’s just the one man that will lead into the many, because you cannot just give one person.

“We have hundreds, thousands of Native Hawaiian cultural practitioners, so if he’s been allowed back by the court, then they actually just opened the door for everybody else to go in,” she said....

(but, by then, the emergency declaration will have expired)

read … Victory for Telescope

Judge Denies TRO Against Telescope Construction

HTH July 23, 2019: … Hilo Circuit Judge Greg Nakamura today denied a petition for a temporary restraining order to halt construction of the Thirty Meter Telescope.

The petition was filed as part of a larger lawsuit for an injunction by Maunakea Anaina Hou, Kealoha Pisciotta, Paul Neves, Clarence “Ku” Ching, Cindy Freitas, William Freitas, Kaliko Kanaele and Lanny Sinkin.

“The evidence has not been presented to show that that (TMT) is financially unable to complete the project,” Nakamura said.

Nakamura also said the petitioners had not presented evidence that they were likely to prevail on the merits of the case or that the public interest favors granting an injunction….

read … Another Victory for Telescope