One of the thorniest issues to arise during the contested case hearing over a Conservation District Use Permit for the Thirty-Meter Telescope was what weight and deference would be given to the claims of petitioners that its construction would offend their religious beliefs and interfere with their religious practices. Under the state Constitution, state law, and precedent set by numerous court cases (including PASH<\/i> and Hanapi<\/i>), Native Hawaiian traditional or customary practices are entitled to protection.<\/p>\n
The issue arose early in the proceedings with the proposed participation of Mo`oinanea, described by E. Kalani Flores (one of the two members of the petitioner Flores-Case `Ohana) as the \u201cnature spirit and guardian of Lake Waiau\u201d who \u201cpresently resides on the summit of Mauna a Wakea.\u201d<\/p>\n
On behalf of Mo`oinanea, Flores petitioned to have her formally admitted as a party to the contested case. According to his petition, Mo`oinanea \u201chas never been previously consulted regarding this and other projects on this sacred mountain. Therefore, she wishes her express concerns to be disclosed.\u201d Her participation in the proceeding \u201cwould provide insight not previously disclosed in this CDUA,\u201d Flores wrote in his filing for the petition. \u201cThis information is significant in order to avoid obstructing the piko\/portal on the summit of Mauna a Wakea that connects with Ke Akua (The Creator) and `Aumakua (Ancestors). This is a major portal for the life forces that flow into this island.\u201d<\/p>\n
In arguing for Mo`oinanea\u2019s involvement in a preliminary stage of the contested case hearing, Flores, an associate professor of Hawaiian lifestyles at the Hawai`i Community College in Hilo, acknowledged that \u201cthere\u2019s probably no precedent in other contested case hearings of a petition being filed on behalf of someone such as Mo`oinanea.\u201d Still, Flores continued, she qualifies as a person who has \u201csome property interest in the land\u201d and who \u201cdoes reside\u201d on the summit.<\/p>\n
Also, Flores said, the definition of \u201cperson\u201d in the DLNR\u2019s administrative rules \u201cis broad and inclusive enough to admit Mo`oinanea\u201d as an \u201cappropriate individual.\u201d<\/p>\n
\u201cMo`oinanea \u2026 does have human blood in her. She does have a genealogy. We have a genealogy for Mo`oinanea that extends back four generations,\u201d Flores said. Not only does she have physical attributes, she also has, according to Flores, a voice, which she \u201chas presented \u2026 to us family members of the Flores-Case Ohana.\u201d<\/p>\n
Tim Lui-Kwan, an attorney representing the University of Hawai`i at Hilo, which had applied for the permit, opposed Flores\u2019 request. \u201cWith all respect to Mr. Flores, we\u2019re not here to argue whether or not he actually believes. We can take him at his word that he actually believes that Mo`oinanea is an entity.\u201d But, he continued, \u201clegally, under the definition provided in the rules Mr. Flores referred to, Mo`oinanea is not a person.\u201d<\/p>\n
Kealoha Pisciotta of Mauna Kea Anaina Hou spoke up in defense of Flores\u2019 contention. This particular contested case, she said, \u201cdoes involve the question of our religious beliefs and uses, \u2026 which include the practice of honoring Mo`oinanea.\u201d<\/p>\n
Also, she went on to say, \u201cpart of our cultural belief is that things that are of the spirit world also have a human form or physical form\u2026. To deny her a place would be a very major pono`ole, unrighteousness.\u201d<\/p>\n
Before the hearing ended, Flores attempted to bolster his case, conceding that \u201cthis may be a concept that many cannot understand.\u201d Of Mo`oinanea, he said, \u201cyou could say she\u2019s a spirit, but yet she\u2019s not.\u201d In the petition, she is described as a nature spirit \u201cbecause that\u2019s the only English terminology that can be placed on that.\u201d<\/p>\n
\u201cShe has humanality connected to her,\u201d he continued, and if not everyone can see her, \u201cit\u2019s just that she resonates at a different vibration, and at a different vibration which some are not open to seeing or hearing that particular vibration.\u201d Flores then read into the record an affidavit he had made, attesting to Mo`oinanea having authorized him and three family members \u2013 Pua Case, her daughter, Hawane Rios, and Case\u2019s and Flores\u2019 daughter Kapulei Flores \u2013 to act on her behalf and to exercise \u201call of her legal rights and powers.\u201d That, Flores argued, should dispense with the argument that she could not represent herself. \u201cWe say that she could have standing, represent herself with the assistance of a cultural interpreter\u2026 We are saying she can be here present and have a cultural interpreter to be able to interpret what is being said, or questions that is posed to her and what is her responses, so as such, we offer that as well.\u201d<\/p>\n
Aoki recommended that the Land Board deny status as a petitioner to Mo`oinanea, and on June 23, the board did just that.<\/p>\n
That was not the last of Mo`oinanea. When the parties presented their witness lists, the demi-god appeared again. Kapulei Flores, age 11, submitted written testimony on behalf of Mo`oinanea. Kapulei claimed that she has the \u201cgift of seeing and communicating with ancestral guardians, divine beings, and nature spirits.\u201d<\/p>\n
\u201cMo`inanea has said that she and others feel that these telescopes already on the mountain are blocking their views and the areas they used to live at,\u201d Kapulei said in written testimony. \u201cShe says that when the other observatories were built, no one got permission from them to build on their home, nobody said they could. There is a piko<\/i>\u201d \u2013 Hawaiian for navel \u2013 \u201con the top of the mountain that is sacred and the telescopes block the piko<\/i> that connects with Ke Akua and `aumakua.<\/i> They wished that the observatories were never there and they don\u2019t like the roads either but if they had to choose between observatories and people coming up, they would choose the people way over the observatories.\u201d<\/p>\n
Kapulei said that Mo`oinanea told her that the TMT \u201cmight change and affect the weather patterns on the mountain and in the areas below such as Waimea.\u201d It has, she continued, already damaged the sleeping area of Poliahu.<\/p>\n
If telescopes continue to be built atop Mauna Kea, \u201csome spirits might have to move off [the] mountain,\u201d Kapulei said. \u201cIf they leave Mauna Kea it might never snow on the mountain aver again because Poliahu would have to leave too and she would have to leave the place she was born and lived all his [sic] life.\u201d<\/p>\n
\u201cYou are killing\/ruining my precious mountain and all for what?\u201d her testimony concluded. \u201cTo see the stars? To see space and the planets? I mean come on, what if someone took away the one thing you loved the most and destroyed it? Well that is what you are doing to my mountain, one of the most things I love dearly, and all for what, space?\u201d<\/p>\n
In the end, Kapulei Flores\u2019 testimony was not received into evidence. According to Pua Case, Kapulei \u201cwas prepared to be here. She is the direct communicator with Mo`oinanea.\u201d Kapulei had attended the fourth day of hearings (out of seven), but, Case said, \u201cshe became ill after that\u201d and would be unable to testify.<\/p>\n
\u201cWhen told she was not going to testify,\u201d Case continued, \u201cshe became very upset\u2026 She had objections because we refused to let her testify. She said, \u2018I have worked too hard for this. I love my mauna and Mo`oinanea.\u2019\u201d<\/p>\n
The decision to pull Kapulei from the witness lineup settled the arguments over whether to accept testimony from Mo`oinanea.<\/p>\n
But the petitioners other witnesses who testified on Mo`oinanea\u2019s behalf or relayed what she had said to Kapulei Flores.<\/p>\n
There was, for one, Diana LaRose, who, she claimed, had been termed a \u201csensitive\u201d since the age of 5. \u201cI can communicate with animals, forces of nature, and the Earth,\u201d she said in testimony to the hearing officer. \u201cAll native people whom I know say that the top of a mountain is where the mountain spirit dwells. Her home is the most sacred place. Out of respect they do not go there except when called to do vision quests or ceremonies.\u201d The TMT she said, would be \u201cdesecration\u201d to the mountain.<\/p>\n
LaRose claimed to have seen Mo`oinanea and drew a picture of her wearing a white dress, sitting on a rock with Lake Waiau in the background. A green lizard-like tail peeks out from under her skirt. The drawing \u201chas been verified\u201d as being Mo`oinanea \u201cby people I didn\u2019t even know,\u201d LaRose said.<\/p>\n
Kalani Flores said in his testimony that Mo`oinanea had spoken of the past uses by Hawaiians of Lake Waiau. Mo`oinanea, he said, \u201cis fine with people putting their piko [umbilical cords] in the lake, but you have to have roots to the mountain.\u201d<\/p>\n
Supernatural Signs<\/i><\/b><\/p>\n
Mo`oinanea might have been the only spirit in the history of the Land Board to have had a contested case petition filed on her behalf. But, according to the petitioners, she was not the only supernatural entity to express concerns over the presence of all telescopes, and in particular the proposal to build the TMT, on Mauna Kea.<\/p>\n
In his written testimony, Flores stated that on May 8, he and other family members conducted a ceremony on the summit of Mauna Kea, during which \u201ca guardian force of nature from the depths\u201d of the mountain delivered a warning. \u201cHe is a guardian who came from the very depths of the mountain, way below the crust of the ocean floor,\u201d Flores stated. \u201cHe was filled with sadness because of the observatories on her [Mauna Kea\u2019s] shoulders and breasts were causing such desecration.\u201d Other guardians also had been \u201cawakened and are on alert\u201d regarding the TMT proposal, he said. The guardian, Flores said, \u201cdeclared that those who are planning to cause further desecration on Mauna a Wakea are \u2018ignorant and lost,\u2019\u201d and intimated that dire things would happen if the project went forward. \u201cThere\u2019s those on the mountain that have said there will be an impact,\u201d Flores said in his closing statement. \u201cWhat\u2019s on the mountain is at capacity. Any more will go beyond what the mountain can take,\u201d he said. Those on the mountain \u201cwon\u2019t retaliate \u2013 someone piles all these rocks on your head, and you have to shake them off. The shaking, and removal of things, [is] in order to set back harmony and balance.\u201d<\/p>\n
Flores also stated that the mountain \u201chas a harmonic oscillation with Mount Shasta in California and Mount Fuji in Japan. What that means, [there is] energy vibration between these three mountains and others. What happens here, as proposed, will affect those in Japan and on the continent in California. Everything\u2019s interconnected.\u201d<\/p>\n
In written testimony, Flores addressed other aspects of Mauna Kea that may have escaped the notice of science. The mountain \u201canchors a very complex multi-dimensional over-fold \u2026 through its very conscious geometric grid, complex frequencies, and unique electromagnetic field. The summit is also an area where vortexes of energy occur. Vortexes distribute energy outward in what is termed electrical vortexes, and inward in what is termed magnetic vortexes. Mauna a Wakea is an inward and outward vortex-portal complex.\u201d In support of that claim, Flores submitted a photo taken in March this year showing a hole in the cloud cover right above Mauna Kea, which he said illustrated the opening of the portal to the heavens.<\/p>\n
(A more mundane explanation of the cloud phenomenon was provided by Derek Wroe, lead forecaster at the National Weather Service in Honolulu. \u201cOne possibility is that the layer of air aloft was disturbed by the presence of the mountain, causing a small area of lift directly over Mauna Kea. This lift could have caused additional cooling in the cloud layer, which then produced some ice\u2026 Once the ice formed, the supercooled water nearby quickly froze, forming show, which then fell out.\u201d Wikipedia notes that this type of cloud formation is also called a \u201cfallstreak hole\u201d or a \u201chole punch cloud.\u201d)<\/p>\n
Findings of Fact<\/i><\/b><\/p>\n
The beliefs of the Hawaiian petitioners were not challenged during the contested case hearing by attorneys for the University of Hawai`i-Hilo, the hearing officer, or the university witnesses. The university did present three Native Hawaiian witnesses \u2013 master Polynesian navigator Chad Babayan, Jacqui Hoover, director of the Hawai`i Island Economic Development Board, and Wallace Ishibashi, Jr., business agent for ILWU Local 142 \u2013 who expressed their views that nothing about the TMT offended their religion or culture or interfered with their practices. Babayan testified, in fact, that Polynesian navigators used the summit of Mauna Kea as a landmark in their voyages, but that they engaged in no ceremonies or observations from the summit to inform their navigational skills, rebutting the claim of Pisciotta that observations from the summit were important to navigators.<\/p>\n
In their joint proposed Findings of Fact, Conclusions of Law, and Decision and Order, the TMT opponents state the religious views of Flores, Kealoha Pisciotta, and other Hawaiian petitioners as uncontested fact.<\/p>\n
For example, Mo`oinanea is said to have been \u201cborn on the summit of Mauna a Wakea and assumed the responsibility as guardian of Lake Waiau from her mother, Melemele, who was the former guardian of this sacred body of water,\u201d according to finding of fact (FOF) No. 306. FOF No. 309 states that Poli`ahu and other ancestrial akua, `aumakua,<\/i> and kupua<\/i> connect with Ke Akua (The Creator) on the summit. \u201cThey wish to have no other observatories on the mountain for if they continue to build, some spirits might have to move off [the] mountain.\u201d<\/p>\n
There\u2019s FOF 311, referring to Mauna Kea as the \u201cpiko\u201d of the island: \u201cWhen we understand the three piko of the human anatomy\u201d \u2013 the umbilical navel, the genital navel, and the head navel, or fontanel, according to Flores\u2019 testimony \u2013 \u201cwe may begin to understand how they manifest in Mauna Kea. Mauna Kea as the fontanel requires a pristine environment free of any spiritual obstructions.\u201d<\/p>\n
Dozens of other claims made by the Hawaiian petitioners relating to their religious beliefs appear in the proposed FOF\/COL\/D&O as undisputed facts.<\/p>\n
The university argued that such beliefs are not grounds for denial of the Conservation District permit. \u201cIn terms of the claims of violations of religious beliefs,\u201d Tim Lui-Kwan said in his closing statement, \u201c\u2026 courts have uniformly denied recognition of religious beliefs as a basis for stopping any kind of an action like this.\u201d The Establishment Clause of the U.S. Constitution, he noted, prevented the official recognition of any religion. \u201cAs a result, he said, what the analysis should focus on is \u201cwhether any state action or proposed action is actually interfering or otherwise restricting the free exercise of your religion. In this case, no evidence was presented that a constitutionally protected, recognized right pursuant to Hanapi<\/i> and PASH<\/i> was actually violated.\u201d<\/p>\n
The rights that do enjoy legal protection, Lui-Kwan said, relate to practices, not beliefs. On this score, Lui-Kwan said, \u201cthe petitioners have not met their burden of proof that the project would violate or interfere with their constitutional rights.\u201d To show this, he said in remarks directed to the petitioners, \u201cyou have to demonstrate that the traditional and customary practice or right you\u2019re claiming is deeply rooted, which requires under PASH that this usage or practice goes back at least to November 25, 1892. Nothing was ever submitted by any of the petitioners claiming this cultural right. The only thing we\u2019ve actually seen from them is that somehow sacred viewplanes are now being violated and infringed on.\u201d<\/p>\n
Statements in the university\u2019s proposed findings of fact are even stronger. Noting that the petitioners have objected to the present policy of the Mauna Kea Management Board of discouraging the stacking of rocks and erecting other permanent structures, the university argued that the modern rock-stacking involves \u201cthe placement or erection of any solid material on land.\u201d If this occurs on land in the Conservation District, \u201cand if they remain on the land for more than 30 days \u2026 then under the express terms of the Conservation District rules, there is a \u2018land use\u2019 that requires a permit.\u201d<\/p>\n
Patricia Tummons<\/b><\/p>\n
Volume 22, Number 7 — January 2012<\/p>\n","protected":false},"excerpt":{"rendered":"
One of the thorniest issues to arise during the contested case hearing over a Conservation District Use Permit for the Thirty-Meter Telescope was what weight and deference would be given to the claims of petitioners that its construction would offend … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[47],"tags":[],"class_list":["post-476","post","type-post","status-publish","format-standard","hentry","category-january-2012"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/476","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=476"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/476\/revisions"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=476"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=476"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=476"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}