STOP HOUSE BILLS 1411 & 1565
Petition written by: Kau'i Pratt-Aquino, Mehana Kihoi & Bimo Akiona, Native Hawaiian beneficiaries of the Public Lands Trust
|
Aloha Hawai'i State Legislature,
Thank you very much for the opportunity to submit testimony. This submission is to express our VERY STRONG OPPOSITION TO HOUSE BILLS 1411 AND 1565. We are disappointed that these bills are being considered by lawmakers when there is an active contested case currently for Mauna Kea on the Big Island. Unfortunately, we see these bills as an attempt by the legislature to circumvent the judicial and administrative branches to force the construction of the Thirty Meter Telescope.
We respectfully urge you to STOP HB 1411 AND HB 1565 because both will be detrimental to the future of Hawai'i and will likely have unintended consequences that are harmful and likely to lead to unnecessary and wasteful litigation. We believe these bills are against the best interests of the public and likely violate the due process rights under the U.S. and Hawai'i State Constitutions.
We oppose House Bills 1411 & 1565 for the following reasons:
HB 1411:
We oppose HB 1411 because it is likely over broad and unconstitutional. HB 1411 strips away the public's right to dispute the disposition of public lands by the Board of Land and Natural Resources ("BLNR"). The disposition of public lands includes the State's ability to lease.
The authors of this bill are misguided and incorrect in the use of Sharma v. State, 66 Haw. 632, 673 P.2d 1030 (1983) because the case law is clear. Native Hawaiians and the general public have a protected property interest in public trust lands as beneficiaries. Beneficiaries are entitled to due process protections under the U.S. and Hawai'i State Constitutions, which includes the right to a contested case.
As Trustee of public lands, the State has an "affirmative duty" to protect and conserve these lands for “the benefit of present and future generations.” HAW. CONST. ART. XI, § 1. Thus, the constitution demands accountability and transparency in the management and disposition of public lands.
Public lands are held in trust for the general public and Native Hawaiians. HAW. CONST. ART. XII, § 4, Admissions Act § 5(f). These lands are not for private use but for public trust purposes including the “betterment of conditions of native Hawaiians.” Admissions Act § 5(f). Thus, “native Hawaiian beneficiaries of the ceded lands trust have a ‘right to bring suit under the Hawai‘i Constitution to prospectively enjoin the State from violating the terms of the ceded lands trust.” OHA v. HCDCH, 117 Hawai‘i at 194, 177 (2009). Native Hawaiians and the general public may sue the state if the disposition of public trust lands violate their right to exercise customary and traditional practices. HAW. CONST. ART. XII, § 7, Admissions Act § 5(f). A contested case hearing is important because it provides the public with an opportunity to assert these rights in the resource. HB 1411 prevents the public from doing this because it eliminates the right to bring a contested case. Thus, HB 1411 is a knee jerk response to address the Mauna Kea proceedings. In the end, HB 1411 will have unintended and harmful consequences because it will impact most leased lands of BLNR.
A contested case is a critical protection that is used as a check and balance over state action. It gives the public the opportunity to dispute the lease of public lands if the action is adverse to their own right in that resource. For these reasons, HB 1411 is short-sighted and should not proceed to prevent due process violations and wasteful litigation. The right to a contested case is absolutely critical and must not be stripped away. Therefore, we urge you to stop HB 1411 because it is bad public policy.
HB 1565
We strongly oppose HB 1565 because we see it as an attempt by lawmakers to circumvent the judicial and administrative branches. HB 1565 would create special subzones for science and technology, which would include the Mauna Kea Conservation District. We do not agree with the new land use classification because it gives non commercial entities an expedited process to obtain permits against the public interests. The rezoning fails to take into account the State's trust obligation to protect customary and traditional rights pursuant to Article 12 Section 7 of the Hawai'i State Constitution. HAW. CONST. ART. XII, § 7. HB 1565 violates this provision because it prioritizes science and research above customary and traditional practices. Customary and traditional practices are the priority under Hawai'i's laws; science and research have no priority at all. We are asking you to STOP marginalizing Native Hawaiian rights in public trust resources.
We also reject HB 1565 because it requires mediation and prohibits contested case hearings if parties are in disagreement. As stated above, contested case hearings are an important and critical process for the public to protect their rights in public trust resources. In addition to this, the public can not obtain relief from the Circuit Court. The Circuit Court provides an important venue for parties to present evidence and testimony. In short, this bill attempts to fast track the administrative process for permits related to activities that can be classified as research and technology, including the construction of the Thirty Meter Telescope on Mauna Kea. We do not support this bill when there is an active contested case related to this issue presently. We ask you to reflect on the purpose of the three branches of government and the message you are sending to the community: "Fight for your rights, but if the legislature does not like the outcome, it will make a law to side step the process."
In sum, we support the existing processes in place and do not want to establish new ones. We see this bill as an attempt to circumvent the existing contested case. Therefore, we are asking for your help to stop this bill and let the contested case proceed. We ask you to respect the public's rights and let the administrative and judicial branches do their job.
Mahalo!
Thank you very much for the opportunity to submit testimony. This submission is to express our VERY STRONG OPPOSITION TO HOUSE BILLS 1411 AND 1565. We are disappointed that these bills are being considered by lawmakers when there is an active contested case currently for Mauna Kea on the Big Island. Unfortunately, we see these bills as an attempt by the legislature to circumvent the judicial and administrative branches to force the construction of the Thirty Meter Telescope.
We respectfully urge you to STOP HB 1411 AND HB 1565 because both will be detrimental to the future of Hawai'i and will likely have unintended consequences that are harmful and likely to lead to unnecessary and wasteful litigation. We believe these bills are against the best interests of the public and likely violate the due process rights under the U.S. and Hawai'i State Constitutions.
We oppose House Bills 1411 & 1565 for the following reasons:
HB 1411:
We oppose HB 1411 because it is likely over broad and unconstitutional. HB 1411 strips away the public's right to dispute the disposition of public lands by the Board of Land and Natural Resources ("BLNR"). The disposition of public lands includes the State's ability to lease.
The authors of this bill are misguided and incorrect in the use of Sharma v. State, 66 Haw. 632, 673 P.2d 1030 (1983) because the case law is clear. Native Hawaiians and the general public have a protected property interest in public trust lands as beneficiaries. Beneficiaries are entitled to due process protections under the U.S. and Hawai'i State Constitutions, which includes the right to a contested case.
As Trustee of public lands, the State has an "affirmative duty" to protect and conserve these lands for “the benefit of present and future generations.” HAW. CONST. ART. XI, § 1. Thus, the constitution demands accountability and transparency in the management and disposition of public lands.
Public lands are held in trust for the general public and Native Hawaiians. HAW. CONST. ART. XII, § 4, Admissions Act § 5(f). These lands are not for private use but for public trust purposes including the “betterment of conditions of native Hawaiians.” Admissions Act § 5(f). Thus, “native Hawaiian beneficiaries of the ceded lands trust have a ‘right to bring suit under the Hawai‘i Constitution to prospectively enjoin the State from violating the terms of the ceded lands trust.” OHA v. HCDCH, 117 Hawai‘i at 194, 177 (2009). Native Hawaiians and the general public may sue the state if the disposition of public trust lands violate their right to exercise customary and traditional practices. HAW. CONST. ART. XII, § 7, Admissions Act § 5(f). A contested case hearing is important because it provides the public with an opportunity to assert these rights in the resource. HB 1411 prevents the public from doing this because it eliminates the right to bring a contested case. Thus, HB 1411 is a knee jerk response to address the Mauna Kea proceedings. In the end, HB 1411 will have unintended and harmful consequences because it will impact most leased lands of BLNR.
A contested case is a critical protection that is used as a check and balance over state action. It gives the public the opportunity to dispute the lease of public lands if the action is adverse to their own right in that resource. For these reasons, HB 1411 is short-sighted and should not proceed to prevent due process violations and wasteful litigation. The right to a contested case is absolutely critical and must not be stripped away. Therefore, we urge you to stop HB 1411 because it is bad public policy.
HB 1565
We strongly oppose HB 1565 because we see it as an attempt by lawmakers to circumvent the judicial and administrative branches. HB 1565 would create special subzones for science and technology, which would include the Mauna Kea Conservation District. We do not agree with the new land use classification because it gives non commercial entities an expedited process to obtain permits against the public interests. The rezoning fails to take into account the State's trust obligation to protect customary and traditional rights pursuant to Article 12 Section 7 of the Hawai'i State Constitution. HAW. CONST. ART. XII, § 7. HB 1565 violates this provision because it prioritizes science and research above customary and traditional practices. Customary and traditional practices are the priority under Hawai'i's laws; science and research have no priority at all. We are asking you to STOP marginalizing Native Hawaiian rights in public trust resources.
We also reject HB 1565 because it requires mediation and prohibits contested case hearings if parties are in disagreement. As stated above, contested case hearings are an important and critical process for the public to protect their rights in public trust resources. In addition to this, the public can not obtain relief from the Circuit Court. The Circuit Court provides an important venue for parties to present evidence and testimony. In short, this bill attempts to fast track the administrative process for permits related to activities that can be classified as research and technology, including the construction of the Thirty Meter Telescope on Mauna Kea. We do not support this bill when there is an active contested case related to this issue presently. We ask you to reflect on the purpose of the three branches of government and the message you are sending to the community: "Fight for your rights, but if the legislature does not like the outcome, it will make a law to side step the process."
In sum, we support the existing processes in place and do not want to establish new ones. We see this bill as an attempt to circumvent the existing contested case. Therefore, we are asking for your help to stop this bill and let the contested case proceed. We ask you to respect the public's rights and let the administrative and judicial branches do their job.
Mahalo!
|
|