Lā 144: Mauna Kea: Supreme Court Will Ignore the Question of DLNR Jurisdiction
August 16, 2015 Williamson Chang, Professor of Law [In his own capacity]
On August 27, 2015 at 8:30, The Hawaii Supreme Court will hear arguments, both pro and con, on the issuance by the Board of Land and Natural Resources of a permit to construct the Thirty Meter Telescope.
Officially, these are the issues on appeal:
“The TMT violates constitutional and statutory provisions guarding the cultural, historical and natural resources within a conservation district. The management plan is inadequate. There is no way the TMT is not a substantial impact.”
This “legal” description of the battle over Mauna Kea, being played out before the world, fails to capture the true essence of this epic struggle.
What is Mauna Kea about? What are the voices of the protectors on the mountain and around the world shouting? Two themes have become clear:
1) Building TMT would be a great desecration of a sacred place; and
2) Where does the Board of Land and Natural Resources get the power to permit such a desecration? Namely, “No Treaty; No Joint Resolution means no TMT!”
The first issue, that Mauna Kea is sacred has been addressed and will be discussed on appeal—in a manner that is wholly unsatisfactory, but it will be discussed.
The second issue: Namely, who gave the University of Hawaii and the Board of Land and Natural Resources the power to permit the building of the TMT. That is the question of power and jurisdiction. That will not be discussed. It was not discussed by the hearings officer, nor by the Circuit Court, it will not be discussed by the Supreme Court.
Yet, the question of power and jurisdiction to make these decisions is the real issue of our time, cutting across every social, political and environmental issue of deep importance in Hawaii: Who gave the green light to Monsanto? Who has the power to allow million dollar condos in Kakaako? Who had the power to permit Rail? Ho’opili? The Super Ferry? and the use of Pohakuloa and Makua as target ranges? State and County agencies, of course.
One might say “those are political, not legal issues.” That is not true. The power and jurisdiction of state government agencies to permit each of these activities is a legal question of jurisdiction, of territorial subject matter.
The legal power to make these decisions must be derived from the State’s legitimate power over the territory of the Hawaiian Islands. How did it get that power? The State relies on a history of Hawaii where the overthrow succeeded and the United States acquired Hawaii by a Joint Resolution.
But now we are learning the true history—the United States never acquired Hawaii: there was no treaty and a joint resolution cannot acquire a sovereign and independent nation.
The State and many scoff at such a claim. Yet, they cannot scoff at the Admission Act—the very act that made Hawaii a State. Section two of that act states that the islands and waters within the State of Hawaii are the same islands and waters as within the Territory of Hawaii in 1900. The Organic Act of 1900 defines what was within the territory. It says that islands and waters acquired by the Joint Resolution “providing” for annexation are the extent of the lands and waters in the Territory:
“§2. Territory of Hawaii. That the islands acquired by the United States of America under an Act of Congress entitled "Joint resolution to provide for annexing the Hawaiian Islands to the United States," approved July seventh, eighteen hundred and ninety-eight, shall be known as the Territory of Hawaii.”
Section Two of Organic Act, “An Act to Create a Government for the State of Hawaii.” (Act of April 30, 1900, 31 Stat 141).
Can a joint resolution of Congress acquire the Hawaiian Islands as territory of the United States and ultimately as territory of Hawaii? Of course not! If that were possible, the legislature of Hawaii could acquire the United States! There are at least 45 statements in the Senate debate on the Joint Resolution in 1898 ridiculing such a view. How many defended the Joint Resolution?–Zero. A typical objection was one made by Senator William V. Allen:
“A Joint Resolution if passed becomes a statute law. It has no other or greater force. It is the same as if it would be if it were entitled “an act” instead of “A Joint Resolution...” That is its legal classification. It is therefore impossible for the Government of the United States to reach across its boundary into the dominion of another government and annex that government or persons or property therein.”
Senator Allen, 31 Cong Rec. at 6635, July 6, 1898, 55th Cong 2d Sess.
It is impossible for a joint resolution to acquire the Hawaiian Islands. It is not merely unconstitutional, it is impossible! Congress knew that and when it came time to define the boundaries of the new state of Hawaii they did not use the definition proposed by the people of Hawaii who drafted a proposed state constitution:
“Section 2. The State of Hawaii shall consist of all the islands, together with their appurtenant reefs and territorial waters, included in the Territory of Hawaii on the date of enactment of this Act, except the atoll known as Palmyra Island, together with its appurtenant reefs and territorial waters, but said State shall not be deemed to include the Midway Islands, Johnston Island, Sand Island (offshore from Johnston Island), or Kingman Reef, together with their appurtenant reefs and territorial waters.”
Section two of the Admission Act says the same thing, virtually, as the skimpy Hawaii definition. But the federal description was designed to deceive---and it worked for 122 years.
To top it off, Congress made the people of Hawaii consent to the federal definition as a condition of statehood. If the people did not adopt this definition Hawaii would not be admitted as a state. Thus, on June 27, 1959 a referendum with three questions was put to the people in a general election. Question two asked if the people accepted the new federal definition.
“(2) The boundaries of the State of Hawaii shall be as prescribed in the Act of Congress [date of approval of this act] and all claims of this State to any area of land or sea outside the boundaries so prescribed are hereby irrevocably relinquished to the United States.”
And if this was not approved by a majority of the people, Hawaii would not be a state.
“In the event the foregoing propositions are not adopted at said election by a majority of legal votes cast on said submission, the provisions of this Act [the Admissions Act] shall cease to be effective.”
Section 7b The Admission Act,” An Act to Provide for the Admission of the State of Hawaii into the Union Act of March 18, 1959 Public Law 86-3 73 Stat 4.
So let us review. There was no treaty. Territory can be acquired only by treaty. A joint resolution cannot acquire Hawaii. The United States passed a joint resolution claiming to acquire Hawaii. The United States never acquired Hawaii. Congress, realizing that they would have to admit this fact, passed the Organic Act which admitted the Territory was empty. At statehood, Congress could not change this existing truth so they hid it in fancy language designed to deceive.
That language was much better than the language the people of Hawaii proposed. So Congress made the people of Hawaii adopt that language on penalty of being denied admission as a State. The people of Hawaii adopted the more complex description.
So, the true definition of the State of Hawaii has no islands or waters. Yet, for 122 years the Courts, Territorial agencies, State agencies, and the Federal government have been applying their own unwritten statute by which all the islands part of the Kingdom of Hawaii are within the Territory, and later, the State of Hawaii. At least since 1959, State Courts and agencies have been in violation of the “covenant” made at Statehood---that they would apply the territorial description with no islands and no waters.
As to Mauna Kea, the Board of Land and Natural Resources is in violation of the Admission Act. What are the consequences if the State breaches the covenant made with the Union at the time of admission? Such a breach is not merely a violation of federal law, it is breaching the compact or promise one made by which Hawaii was admitted as a State.
In the legislative history of statehood, this covenant is described as a condition subsequent. What are the consequences of breach of a condition subsequent? Well, the adoption of the limited description of the territory of Hawaii was a condition of becoming a state. Hawaii has breached section two by “expanding” the statutory definition of the State to include—islands and places such as Mauna Kea.
The United States itself has breached that compact by expanding, without legal justification, the dominion of the State. Normally, any breach of the terms of the admission of a State is a serious matter --- as when the Southern states seceded from the Union. Here, both the State and the Federal Government have ignored this breach. Yet, if the United States did not intend to apply the law, impose it as a condition of statehood in the first place?
In conclusion, as a condition of statehood, the people of Hawaii approved an amendment to their constitution which rendered the state empty. Is the island of Hawaii in the State of Hawaii? No. Is Mauna Kea in the State of Hawaii? No. Does DLNR have any power to permit the construction of the TMT on Mauna Kea? No—not according to the Admissions Act [and the Hawaii State Constitution Article XV section one] Who made this law? It is a covenant between the people of Hawaii and the United States. Congress made it and our parents approved it.
Now, the Admission Act is federal law and the Hawaii Supreme Court must take mandatory judicial notice of the Admission Act. The DLNR hearings officer was mandated to take judicial notice of Section two of the Admission Act. So was the Board of Land and Natural Resources obligated as well as the Third Circuit Court. Yet, no one took judicial notice, as is mandatory under the Hawaii Rules of Evidence Section 202(b).
This was true of the hearings officer in the contested case hearing, of the Board in its decision, and of the Circuit Court in affirming the opinion. Did any of these bodies or persons refer to the actual federal description of Hawaii? No. Will this lack of jurisdiction be raised and discussed on August 27th in the Supreme Court of Hawaii? No, of course not. It has never been raised or examined by any appellate court.
The protectors raise this issue. The protectors have been accused of trying to turn Mauna Kea into a “political issue.” It is not political-- it is a legal issue—the most basic legal issue in all of law---subject matter jurisdiction. Territorial jurisdiction is subject matter jurisdiction at its most basic. Elsewhere, it is a very serious defect.
The lack of territorial subject matter jurisdiction is deadly—any action taken without it is “void.” Territorial subject matter jurisdiction can be raised at any time, before, during, and long after judgment, even after the Supreme Court rules. The parties cannot consent to subject matter jurisdiction nor waive its absence. A Court or body without subject matter jurisdiction is acting without power. Nothing it does thereafter has any legal effect.
So what should happen on August 27th? If the law is applied, the Supreme Court is obligated void the permit even if the issue is not raised. The Board of Land and Natural Resources had no jurisdiction or power to approve the permit. Mauna Kea is “not public lands in the State.” Hawaii Revised Statutes Section 171-2.
Will the Supreme Court void the permit? No. This is Hawaii were secrets rule not the “Rule of Law.” The Supreme Court will pretend there is jurisdiction because to fail to do so would, under its decisions, be an “absurd result.” The status quo is not absurd. What is absurd is the belief, for 122 years, that by a Joint Resolution the United States acquired the Hawaiian Islands.
The official historian of the United States Department of State had a website that presented the history of the United States. Until last year, the website, when it came to the acquisition of Hawaii stated that “Hawaii was acquired by a Joint Resolution.” Some months ago, the website was taken down. It was replaced with a statement that said:
“Notice to readers: This article has been removed pending review to ensure it meets our standards for accuracy and clarity.”
https://history.state.gov/milestones/1866-1898/hawaii [last visited August 16, 11:40 A.M.]
(However, you can find the original website using the “way-back” program.)
Moreover, while the Hawaii “annexation” website was taken down the official historian of the United States failed to check other episodes of history—like the Spanish American War. In the description, the official historian admits that “Hawaii was taken by pretext” and annexed by a Joint Resolution:
“The McKinley Administration also used the war as a pretext to annex the independent state of Hawaii. In 1893, a group of Hawaii-based planters and businessmen led a coup against Queen Liliuokalani and established a new government. They promptly sought annexation by the United States, but President Grover Cleveland rejected their requests. In 1898, however, President McKinley and the American public were more favorably disposed toward acquiring the islands. Supporters of annexation argued that Hawaii was vital to the U.S. economy, that it would serve as a strategic base that could help protect U.S. interests in Asia, and that other nations were intent on taking over the islands if the United States did not. At McKinley’s request, a joint resolution of Congress made Hawaii a U.S. territory on August 12, 1898.”
[Last visited August 16, 2015 at 11:40 a.m. HST https://history.state.gov/mi…/1866-1898/spanish-american-war ]
The point is, no one knows what to do now that the secret is out: Congress by its own hand, in 1900 and 1959, stripped the Territory of Hawaii and the State of Hawaii of all islands and waters. They did so because they could never prove sovereignty if challenged. It is the claimant, the United States that has the burden of proving sovereignty over the Hawaiian Islands. Since there was no treaty, the United States cannot meet that burden of proof. In light of this fear Congress wrote what it could---a description of the Territory of Hawaii that made no claim to any of the islands.
The United States and the State of Hawaii see no way out of this mess. It will be up to all of us to meet this challenge.