State high court to determine burden of proof in Maunakea rules case

A legal challenge against the University of Hawaii’s rules for managing Maunakea cannot proceed until the Hawaii Supreme Court settles a question of legal procedure.

In 2020, the “Flores-Case ‘Ohana” — a four-person association consisting of Hawaiian activist E. Kalani Flores and his family — filed a lawsuit against UH, arguing that its administrative rules impinged on their right to traditional cultural practices on the mountain.

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Ashley Obrey, attorney for the Flores family, said the argument was essentially that UH’s rules “regulated Native Hawaiians out of existence” and violate their constitutional right to exercise cultural practices.

In particular, the case notes that the university’s administrative rules prohibit a number of activities without any listed exemption or accommodation for Native Hawaiian traditional practices.

The case was to be heard in the Third Circuit Court in Kailua-Kona earlier this year, but the question of whether UH’s rules are unconstitutional has been sidetracked by a separate and more esoteric question that will be decided by the state Supreme Court.

That question, Obrey said, involves the burden of proof for the case. In hearings at the Circuit Court level, UH argued that the general rule for people challenging legal statutes — where the challenger has to provide sufficient proof to demonstrate why a law is unjust — should apply to administrative rules as well. So UH essentially argued that the Flores family needs to prove how the UH rules impinge on Native Hawaiian rights.

Obrey said the Flores family argued otherwise: that the article of the state Constitution that protects Native Hawaiian rights instead places the burden of proof on UH, and that it is the university’s duty to prove that its administrative rules do not negatively impact Native Hawaiian rights.

At an impasse, the Circuit Court passed the question of who bears the burden of proof to the high court.

The Supreme Court will hear oral arguments in the case on Nov. 1, with a decision to follow after an indefinite period of consideration. After that decision is made, regardless of what that decision is, the case will return to the Circuit Court level, Obrey said.

“It really will just change who has to do all the work,” Obrey said.

Obrey, however, also noted that the question of UH’s administrative rules for Maunakea will become irrelevant soon, because the university will relinquish management of the mountain to the newly formed Maunakea Stewardship and Oversight Authority by July 2028, with a transition period to begin next July.

“I suppose (the case) could be mooted if it takes too long, but I have reason to believe they’ll make a decision before the transition,” Obrey said. “Once we get the decision back from the Supreme Court, there should be a fast solution in the Circuit Court.”

Representatives of UH declined to comment.

Email Michael Brestovansky at mbrestovansky@hawaiitribune-herald.com.

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