Native Hawaiian advocates won some and lost some Wednesday in a pair of Hawaii Supreme Court verdicts regarding Maunakea.
On the same day, the Supreme Court ruled largely against two Hilo residents but in support of a group of Native Hawaiian residents in two unrelated but similar cases surrounding the jurisdiction of the mauna.
The former case began in 2019, when Hilo residents Ku‘ulei and Ahiena Kanahele filed a petition with the state Land Use Commission, arguing that the use of the land on Maunakea’s summit is inconsistent with how it is zoned.
The Kaneheles’ argued that because of the level of development at the Astronomy Precinct, the area should be zoned as urban instead of conservation, and that any further development should require a district boundary amendment to rezone the land to urban.
This petition led to the Supreme Court case after the Land Use Commission concluded it doesn’t have the jurisdiction to rule on conservation land.
Associate Justice Paula Nakayama on Wednesday published the Supreme Court’s majority opinion, which concluded that the Kaneheles’ arguments were flawed and misconstrued the Land Use Commission’s decision.
Nakayama wrote that the commission lacks jurisdiction over conservation land for which conservation district use permits have been granted, and was correct in denying a petition that would have required the commission to make declarations it lacks the authority to make.
“The Kanaheles are not asking the commission to reclassify the Astronomy Precinct from a conservation district into an urban district,” Nakayama wrote. “The Kanaheles want a declaration that the astronomy facilities are not permitted land uses within a conservation district.”
Nakayama’s verdict was not unanimous, however. Associate Justice Michael Wilson wrote a dissenting opinion, and was joined by fellow Associate Justice Sabrina McKenna.
The dissenting opinion argued that the Kanaheles were merely asking for the commission to interpret its own rules and statutes to determine whether the Astronomy Precinct remains consistent with a conservation district classification.
“The Kanaheles fully agree with Wilson’s dissent,” said Lance Collins, the Kanaheles’ attorney, who added their next moves are yet to be decided.
“They’re saying now that the only way to challenge this is to seek a district boundary amendment,” Collins said.
On the other hand, the Supreme Court ruled in favor of another group of advocates in what Collins called an “unequivocal victory” for Native Hawaiians.
In 2020, Hawaiian activist E. Kalani Flores and his family — together forming the “Flores-Case ‘Ohana” — filed a lawsuit against the University of Hawaii, arguing that its administrative rules impinged on their constitutional right to cultural practices on the mountain.
Like the Kanahele case, the Flores suit also led to a more fundamental question to be determined by the high court: Should the burden of proof for determining whether a law is just or unjust lie with the plaintiff or defendant?
UH argued the former, opining that the Flores-Case ‘Ohana needed to prove UH’s rules are unconstitutional. The ‘Ohana argued otherwise — that because of the state constitution’s protection of Native Hawaiian rights, UH must prove that its rules do not impact those rights.
While the majority opinion, written by Chief Justice Mark Recktenwald, concluded that ‘Ohana still has the burden of proving unconstitutionality, it also determined that state agencies must consider the impacts on Native Hawaiian rights in basically every action.
Recktenwald’s opinion revolves around the “ka pa‘akai analysis,” a legal framework stemming from a 2000 Supreme Court case that identifies a governmental action’s potential impacts to Native Hawaiian rights. Recktenwald argued that framework must be applied to administrative rulemaking such as UH’s administrative rules regarding Maunakea.
“Native Hawaiian traditional and customary rights do not exist at the sufferance of the state and its agencies,” Recktenwald concluded. “These rights must be protected and indeed, the state and its agencies have a constitutional obligation to do so.”
This verdict was not unanimous, either. Associate Justices Todd Eddins and Nakayama disagreed in part, arguing that ka pa‘akai analyses are unsuited for administrative rulemaking.
And McKenna also wrote her own dissent, agreeing in part with Eddins, but adding that a ka pa‘akai analysis has its place in rulemaking, even if a full written analysis is unnecessary.
Recktenwald remanded the Flores-Case ‘Ohana case back to the Circuit Court for “further proceedings consistent with (his) opinion.”
Legal representation for the Flores-Case ‘Ohana could not be reached for comment in time for this story.
Email Michael Brestovansky at mbrestovansky@hawaiitribune-herald.com.
