Fighting what it says is an act of retaliation and harassment, a private nonprofit that has fought development of the Thirty Meter Telescope is seeking to quash a subpoena for its bank records issued by Hawaii Attorney General Clare Connors.
But the attorney general’s office says the organization, KAHEA: The Hawaiian Environmental Alliance, has not filed financial statements required by law and has used tax-deductible donations for activities of civil disobedience not allowed under laws governing tax-exempt organizations.
The office says it needs the records to fulfill the attorney general’s responsibility of regulating charitable organizations.
KAHEA for years has been at the center of the fight against the telescope on Mauna Kea, including court battles in which it has squared off against the attorney general’s office.
In late November, the attorney general issued a subpoena seeking the organization’s bank records for nearly three years, from 2017 through most of 2019, including monthly statements, deposit tickets and ATM surveillance photos.
KAHEA has filed a motion asking a state court judge to quash the subpoena, arguing that the subpoena is burdensome and oppressive — the legal standard for disallowing such a subpoena. A hearing is scheduled for Jan. 29 before state Circuit Court Judge James Ashford.
In the meantime, Jon Osorio, a KAHEA director who is also dean of the University of Hawaii’s Hawaiʻinuiākea School of Hawaiian Knowledge, said in an interview that he has “no idea” what Connors’ office might be looking for.
Osorio echoed arguments KAHEA’s attorney has made, asserting the subpoena is designed to intimidate and retaliate against KAHEA for opposing the telescope.
“It’s analogous to the kinds of intimidation that the governors of Southern states used against civil rights marchers,” he said. “It’s not as obvious, it may not be as violent, but it is still as counterproductive, in my opinion.”
“They’re just pissing us off,” he added.
But in a motion filed late Tuesday, Connors’ office laid out its case in detail. The organization’s alleged failure to file required financial statements since 2017 was just one issue.
Perhaps more important was the question of whether KAHEA, as a charitable organization, could use donations to support civil disobedience protests against the telescope.
KAHEA’s website lists three funds: the Mauna Kea Education and Awareness Fund, the Mauna Kea Legal Defense Fund and the Aloha ‘Aina Support Fund. While the legal defense fund finances legal efforts, the Aloha Aina Support Fund is used to support “non-violent direct actions” opposing the telescope, including “funding for frontline logistics, including provision of bail where appropriate, supplies, transportation, technical services, and community meetings convened for such purposes.”
“The ‘non-violent direct actions’ supported by donations to Kahea plainly refer to the five month long illegal blockade of Mauna Kea Access road, in protest of the construction of the thirty-meter telescope,” the attorney general’s memo says.
To support its argument that nonprofits are not allowed to engage in civil disobedience activity, the attorney general cites an IRS ruling concerning a charitable organization that sponsored protests to promote world peace, including actions like blocking vehicle traffic and disrupting government work and the movement of supplies.
“The IRS then denied the organization tax-exempt status, reasoning that the ‘organizing and sponsoring’ of protests utilizing illegal activity demonstrated the lack of an exclusively charitable purpose,” as required by the tax law governing nonprofits.
Although technically filed against First Hawaiian Bank, where KAHEA has its account, KAHEA stepped up to file its motion after the bank informed the organization it would not fight the subpoena.
That was a change of position for the bank, which initially said it would not turn over KAHEA’s records, KAHEA’s motion to quash says.
Susan Kam, a First Hawaiian spokeswoman, did not respond to a request for comment.
KAHEA was a party in two contested cases that were held before the Hawaii Board of Land and Natural Resources challenging the telescope’s application for a permit to develop in a conservation area. KAHEA and its allies continued the challenges in appeals to the Hawaii Supreme Court. The attorney general’s office represented the BLNR opposing KAHEA in both cases.
The litigation, which included a 2015 Supreme Court victory for KAHEA, delayed the project for years before the high court cleared the way for the project to move forward in 2018.
But when state officials closed the Mauna Kea access road in 2019 so developers could begin constructing the observatory, masses of protesters turned out to block the road. The protests came to a head in July, when dozens of protesters were arrested.
Osorio said the continuing protests show a need to change Hawaii’s land use laws and that government officials should be heeding those messages.
”It’s wrong for the attorney general to be intimidating those organizations and those people who are simply trying to bring a better way of managing their resources into this state,” he said.
The KAHEA subpoena isn’t the first Connors has issued related to the Mauna Kea protests.
In September, the attorney general issued a subpoena to the Office of Hawaiian Affairs for information related to OHA’s financial support of the Mauna Kea protest movement.
Also, the office subpoenaed Hawaiian Airlines to try to get names of people who had donated frequent flyer miles to protesters but withdrew the subpoena after lawyers for the airline resisted the demand for records, the Honolulu Star-Advertiser reported.
Under state law, the attorney general is required to investigate violations of the law when directed by the governor or when the attorney general believes an investigation would be in the public interest.
As charities set up to benefit the general public, nonprofits like KAHEA are generally regulated by the attorney general’s office, which is supposed to make sure the organizations fulfill their fiduciary duties. And the thrust of Connors’ argument is that the office is doing that.
“The subpoena is targeted and not the ‘fishing expedition’ claimed by Kahea; indeed, it seeks to determine the source and expenditure of funds, the very information necessary to determine whether the organization if truly operating as a non-profit,” the attorney general’s memo says.
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