No Property, No Say, and No Plan

Posted by Miwa at Feb 19, 2010 03:30 AM |

From Miwa:

Back in January, we posted here about some disappointing news: the denial by the Hawai’i State Board of Land and Natural Resources (Land Board) and Judge Hara (3rd Circuit) of our right to a administrative review (contested case) on UH’s new “management plan” for Mauna Kea. We have now waded through the findings from the Judge, and here’s the story:

One cloudy Thursday afternoon, the Land Board voted to approve a UH’s proposed “management plan” for the conservation district on the summit of Mauna Kea. At the hearing, KAHEA, along with a group of long-time advocates, Native Hawaiians with ancestral ties to the mountain and conservationists (including Sierra Club Hawaii Chapter, Mauna Kea Anaina Hou, the Royal Order of Kamehameha I, and Uncle Kukauakahi Ching) requested a “contested case” hearing, a common practice in Hawaiʻi.

A Simple Request: Hold a Hearing
As many of you know: For 40 years, the summit conservation district has been the focus of a contentious struggle over the expanding footprint of an industrial park for telescopes within its boundaries. Approval of this plan, written by the lead developer–the University of Hawai’i–would pave the way for the largest expansion of industrial land use on the summit in nearly a decade, a telescope complex larger than a modern sports stadium, the TMT.

The contested case hearing is part of a time-honored process designed to protect the rights of those affected by state agency decisions, allowing us to formally present evidence of how the plan would impact access, traditional use, cultural practice and natural resources on the mountain. Through the hearing process, we would be allowed to make our case for adopting a conservation plan in compliance with state laws governing the summit conservation district, in place of the development plan written by the lead developer.

Despite the fact that we have had contested case hearings in the past, in a surprise move, the Board denied our request.

No Property, No Say, and No Plan
The Land Board denied our right to a hearing, based on a claim that our group does not have a “property interest”–flying in the face of decades of law affirming Native Hawaiian traditional and customary rights and the right to a healthy environment. The unexpected decision instead championed a dangerous new model for rights on public lands:  No property, no say.

“No property, no say” is a dangerous new tactic that the summit developers and the Land Board are hot to pursue. Why? Because detrimental (but profitable!) activities in conservation districts are easier to push through if no one can challenge them. There are legal rights to cultural practice, public access, and a healthy environment in Hawai‘i. But “no property, no say” makes it difficult or impossible for many to assert or uphold those rights.

The Land Board also asserted that “the plan is a plan but is not a plan.” (Yeah. Makes no sense to us, either.)  In the UH Plan, an unlimited number of telescopes, roads, office buildings, parking lots and other structures may or may not be built at an undetermined date in the future. The Land Board is claiming that because the UH plan is so vague, it can’t possibly affect anyone. Since no one is affected, no one gets a contested case. One judge (Judge Hara), agreed.

BUT by approving the plan, the Board has ensured that almost any future action to expand industrial land use in the summit conservation district will be “consistent” with the approved plan. We believe this action impacts us–and the future of Mauna Kea’s conservation district–big time.

No Property, No Say and No Plan? We believe this is a really, erm… crappy way to do decision-making and planning on the future of important conservation lands in Hawai’i. And we’re going to fight it.

The Road Ahead
We are again appealing, this time to the intermediate court of appeals. The outcome of this case will set the stage for how decisions are made on conservation lands in Hawai’i for decades to come. Throughout Hawai’i, approximately 2 million acres of land fall within conservation districts like the one on Mauna Kea.

We are facing well-funded developers from some of the world’s wealthiest nations, and some of the highest paid attorneys in Hawai‘i. Yet, we also are building on over 15 years of successful advocacy, closer than ever to realizing our vision of a better future for this incredible summit–where native habitat and cultural sites can be restored, and species brought back from the edge of extinction.

Your Kōkua Needed!
At stake is not just the future of Mauna Kea, but the future of community voices and the fate of unique and fragile forests, shorelines, summits and waters throughout Hawai’i.

We are committed to fighting this dangerous new paradigm all the way to the Hawaiʻi Supreme Court, if that’s what it takes. We hope you–and so many like you, who understand what is at stake–will walk with us on journey forward.

We are currently working to raise $10,000 in legal fees. We are a little over 1/4 of the way there. If you’d like to contribute, click here to make a secure, easy contribution online. You can also send your gift to: KAHEA, PO Box 37368, Honolulu, Hawai'i 96837.

We will continue to update you on the latest for the sacred summit, and opportunities to get involved, participate, and kōkua.

*The plaintiffs — Mauna Kea Anaina Hou, Royal Order of Kamehameha I, Sierra Club, KAHEA, and Clarence Kukauakahi Ching –express our deepest thanks to you for your support and for making a difference! MAHALO!

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Anonymous says:
Feb 19, 2010 10:46 AM
The assertion that "no property no say" is based on a falacy. The term contained in all of the foundational deeds (Mahele Awards, Government Lands and Crown Lands) of all of the lands in Hawaii contains the phrase "Koe ke kuleana o na kanaka" which translates as "except for or subject to the interests of the people". Most folks translate kuleana as rights or responsibility but it also means interests as in having an interest in something (land, a business, etc.). So, if the people have an undivided interest in almost all of the land in Hawaii, and they do, then they are property owners despite the undivided nature of this interest. Therefore, as long as the foundational deeds contain the phrase, "Koe ke kuleana o na kanaka", we are shareholders in the property and do have a say. The State just needs to remember that they are just trustees of ceded lands, not owners. In addition, most so-called "private lands" as long as they are undeveloped are subject to the interests of the people. So, bottom line, we cannot accept the State assertion that we do not have a legal interest in those properties whose deeds contain the phrase quoted above.
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