As the representative for the Temple of Lono in the Mauna Kea contested case, I find the court’s rulings related to the traditional Hawaiian faith to be very disturbing.

The Hawaii Supreme Court accepted the Board of Land and Natural Resources position that there were no traditional Hawaiian spiritual practices related to the land sought for the Thirty Meter Telescope. The evidence for the lack of such practices was the absence of any physical evidence, such as an altar, on that particular piece of land.

There was extensive evidence presented during the contested case regarding spiritual practices related to that specific land, particularly the unobstructed view plane critical to spiritual ceremonies precisely because the absence of obstructing structures makes the spiritual practice possible. The TMT would block that view plane and obstruct the spiritual practices.

The court’s finding no spiritual relation to the site simply ignored that evidence.

Hawaii State Supreme Court Associate Justice Sabrina McKenna questions attorney’s during oral arguments Civil Beat vs city. 1 june 2017. photograph by Cory Lum/Civil Beat
Hawaii State Supreme Court Associate Justice Sabrina McKenna questions attorneys during oral arguments in a case in June 2017. Cory Lum/Civil Beat

There is an altar on that specific piece of land. The court, however, ruled that altar to be a political expression, not a spiritual expression, because the altar was built after the TMT controversy erupted.

The court also found that particular altar to be a contemporary spiritual practice, not a traditional spiritual practice protected by the constitution of Hawaii.

The court’s breath-taking leap into assuming the legal authority to declare which spiritual practices are legitimate and which are not flies in the face of a long judicial history of avoiding just such determinations by the government. Down that slippery slope is establishment of a state religion that suppresses any others.

That a particular action has a political dimension does not rule out that same action having a spiritual dimension. The civil rights movement has been filled with actions that had both dimensions.

Decision ‘Deeply Troubling’

The court’s characterization of the new altar as contemporary, not traditional, was simply a way to remove constitutional protection from Hawaiian spiritual practices and to put that faith in a straitjacket, where only practices conducted in the past are considered legitimate.

Would the Catholic decision to conduct the mass in English be a “contemporary” practice and, therefore, not a legitimate expression of faith because it is new?

These rulings ignore the extensive evidence of actual practices and constitute a direct attack by the court on the traditional Hawaiian faith.

As an attorney, I also find the Hawaii Supreme Court decision in the Mauna Kea case to be deeply troubling.

The majority opinion violated many of the rules that normally apply to judicial review. For example, appellate courts only review the record created in the lower courts; the appellate courts do not address issues not addressed by the lower courts.

At the beginning of the Mauna Kea contested case, the hearing officer specifically ruled that she would hear no evidence regarding the continued legal existence of the Kingdom of Hawaii and any land claims the kingdom might have conflicting with those claimed by the state of Hawaii.

Based on that ruling, the parties wishing to make the case that the kingdom does still legally exist with its government absent did not present their evidence.

That evidence included recent scholarship on the illegality of annexation and other evidence supporting the continued existence of the kingdom under international law.

Despite the specific ruling by the hearing officer preventing the parties from creating a record on the kingdom issue, the Supreme Court took it upon itself to include a section of their opinion rejecting any challenge to the legitimacy of the state of Hawaii government. To prohibit a party from making a record and then ruling against the party’s position is a classic violation of the due process rights of the party.

The Supreme Court is fully aware of due process requirements and rendered its opinion on the kingdom anyway. Whatever your view might be of the current status of the kingdom, the lack of fairness in the treatment of that issue by the agency and the court is obvious.

Despite the rule requiring an agency to provide a reasoned explanation for rejecting a finding of fact proposed by a party, the hearing officer rejected thousands of proposed findings without identifying them or providing a reasonable explanation for their rejection.

Instead, the hearing officer’s proposed ruling offered a list of more than 20 reasons that might (or might not) support the rejections without linking a particular reason to a particular rejection.

The law, justice and Hawaiian spiritual practitioners paid the price for a predetermined outcome.

The court denied a motion we made to have the matter sent back to the hearing officer with directions to provide a reasonable explanation for the rejection of proposed findings. That denial nullified the rule requiring such explanations, a terrible precedent for future cases. If the agency does not explain why a proposed finding is rejected, the party whose finding is rejected has no record upon which to base an appeal.

The court’s rulings intruding into the question of what constitutes a legitimate spiritual practice, addressing a matter not allowed to be litigated during the contested case, and refusing to require an agency explanation for rejecting proposed findings are all evidence of a decision that was not based in the law and failed to protect the rights of those who participated in the contested case.

The opinion sought the outcome of approval for TMT. The law, justice and Hawaiian spiritual practitioners paid the price for that predetermined outcome.

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About the Author

  • Lanny Sinkin
    Lanny Sinkin is an attorney in federal practice. His cases include suing the U.S. Navy to prevent their testing sonar on Whales, challenging NASA's use of plutonium on deep space missions, pursuing a racketeering case against the covert operators in the Iran-contra scandal, and defending Lakota Tribe members at Standing Rock.