OHA in Court: ‘Mauna Kea Must be a Money-Maker for Us’
by Andrew Walden
The problem on Mauna Kea is not telescopes. It is the low rent those telescopes are paying.
That’s the upshot from the Office of Hawaiian Affairs (OHA) “Motion for Summary Judgment,” against defendants University of Hawaii (UH) and Department of Land and Natural Resources (DLNR), filed by March 2, 2020. OHA’s motion is set to be heard March 31, 2020, before First Circuit Judge Jeffrey Crabtree.
In Hawaii litigation 14 years can go by in the blink of an eye. The key to the timing of this scenario is spelled out on page 3 of OHA’s motion:
“On June 21, 1968, the BLNR, as lessor, and UH, as lessee, executed General Lease No. S4191 (“General Lease”), which described and established the Mauna Kea Science Reserve. Commencing on January 1, 1968 and terminating on December 31, 2033….”
After months of occupation by anti-telescope protesters, one might expect OHA to mount some kind of argument for removal of telescopes from Mauna Kea. Right?
The closest OHA gets to ‘removal’ is on page four where OHA’s legal team, headed by OHA Trustees counsel Robert Klein, observes: “Importantly, the General Lease requires that any improvements made thereto must be ‘removed or disposed of by the Lessee at the expiration or sooner termination of this lease.’”
Mauna Kea has always been about money. In 2002 Clayton Hee demanded astronomers cough up “$20 million in endowments” for OHA. Core Mauna Kea kia’i--including the Royal Order of Kamehameha and OHA anti-telescope point person Kealoha Pisciotta--authored an “economic proposal”—Lease rent for “god’s home” of “$50 million per year.”
If the General Lease is renegotiated, the fate of the ‘improvements’ will be decided in those negotiations. That gives OHA leverage.
Now, with the clock ticking down to 2033 and the billion-dollar TMT hanging in the balance, there is a lot of money on the table--and OHA wants a cut. Take a look at the terms which appear frequently in OHA’s motion:
- ‘lease’ 38 times
- ‘fiduciary’ 19 times
- ‘breach’ 13 times
- ‘fund’ 6 times
- ‘$’ or ‘money’ 5 times
- ‘rent’ 4 times
Written by Klein, who is simultaneously seeking a court order allowing OHA to hide OHA Trustees’ executive session minutes from the State Auditor, the use of the word “fiduciary” takes on a comical aspect. For instance OHA argues:
“In managing the ceded lands trust, the State’s trust duties are ‘measured by the same strict standards applicable to private trustees.’ … As such, Defendants ‘[are charged] with moral obligations of the highest responsibility and trust . . . and should therefore be judged by the most exacting fiduciary standards’ when managing ceded lands.”
Given OHA’s decades-long record of corruption and dysfunction, any OHA control of the Mauna Kea General Lease can only represent a far greater breach of the State’s trust duties. Yet somehow, Klein expects Judge Crabtree to miss this little detail.
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OHA-sponsored litigation has done much to artificially restrict the availability of land. As a result of the high housing costs OHA has created, the 2020 US Census is expected to reveal that for the first time in history a majority of Native Hawaiians now live outside of Hawaii.
OHA’s land-use litigation makes Native Hawaiians suffer and leave Hawaii so that OHA could enrich itself.
In spite of this materially anti-Hawaiian record, OHA shamelessly cites as precedent “OHA v. Housing & Community Development Corp. of Hawaii” otherwise known as 'the Ceded Lands Case' – which begins in 1994 with OHA suing the Waihee administration to block affordable housing construction on so-called ceded lands in Lahaina and Kailua-Kona.
The unanimous US Supreme Court--14 years later--slapped down the unanimous Hawaii Supreme court Ceded Lands ruling thus obliterating the claim that the 1993 ‘Apology Resolution’ had any legal effect—but by then OHA’s land-use controls were deeply entrenched. And the building blocks of those controls can be traced through Klein’s citations of precedent in OHA’s motion for summary judgment.
But I digress.
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The core of Klein’s motion for summary judgment argues, “…that Defendants breached and continue to breach their fiduciary duties by failing to properly manage the ceded lands on Mauna Kea….”
What, in OHA’s view, is a breach?
It’s all about money:
“UH receives nominal rent ($1.00/year) in exchange for telescope viewing time.” Klein p4
“The 2014 Audit reveals that UH charged unauthorized fees and penalties since 2007 resulting in ‘almost $2 million in unauthorized fees from commercial tour operators.’” Klein p8 (Klein then points out that subsequent OHA-funded litigation prevented UH from refunding the $2M, thus preserving the cash flow for OHA to grab.)
“UH has made no effort to systematically estimate the true cost of implementing its management plans or to develop a plan to generate sufficient revenue or funds to support that effort.” Klein p14
“…Defendants on the one hand blame many of their deficiencies in managing the MKSR on lack of funds, while on the other hand they intentionally structured their subleases to compensate UH in kind with telescope viewing time. This is effectively self-dealing because UH has reserved the benefits of MKSR development to itself. At best, UH will argue that its development of the astronomy precinct benefits education, which is one of the Ceded Lands Trust purposes; however, ignoring Native Hawaiian beneficiaries’ interests in arguably their most significant cultural site represents a grossly imbalanced approach which is anything but impartial--a duty legally imposed upon Defendants as trustees….” Klein p16
In other words, UH is in breach because it isn’t giving money to OHA. And Judge Crabtree is expected to ignore any question about whether OHA is itself a violation of the Ceded Lands Trust.
And how can this alleged ‘breach’ be healed? – Rewrite the General Lease to jack up the rent and give the money to OHA!
“Specific lease provisions are necessary for Defendants to meet their fiduciary duty to ‘use reasonable skill and care to make trust property productive.’ Put a different way, an ‘ordinary and prudent person’ would not lease his own property under such broad and unenforceable terms. UH also fails to use transparent and standardized processes when granting subleases and determining sublease terms. UH has made it a practice of charging nominal rent or no rent at all, with little to no conditions addressing historical, environmental, and cultural protection issues. Again, these are the types of decisions that UH may not make as a fiduciary of the Ceded Lands Trust. UH must remain transparent and act as an ordinary and prudent person would with his own land—charging a reasonably competitive rent—such that all trust beneficiaries, including Native Hawaiians, may benefit.” p14
Summing up OHA’s case, Klein makes four key points each of which is a rationalization for OHA getting more money:
For the foregoing reasons and authorities, Plaintiff THE OFFICE OF HAWAIIAN AFFAIRS respectfully requests that the Court grant its Motion for Summary Judgment and
(a) declare that Defendants breached and continue to breach their fiduciary duties by failing to properly manage the ceded lands on Mauna Kea,
(b) issue an injunction requiring Defendants to fulfill their trust duties with respect to the ceded lands on Mauna Kea and precluding actions that violate their trust duties,
(c) order an accounting of the ceded lands on Mauna Kea and the cost of managing those lands in compliance with Defendants’ fiduciary duties, and
(d) pay restitution to make the trust whole. p17
The more telescopes on Mauna Kea, the more rent money OHA can make.
LINK: OHA’s Motion for Summary Judgement