01-29-16 Update to Federal Court Case

The Ongoing Battle Over Land and Water Use: 

Legal Maneuvering, and the Politics of Social Control

As we go about our day to day lives on the island many of us visibly associated with the SHAKA movement are often asked about “what’s happening ?”. Generally, there seems to be a sense of bewilderment about how something that “we the people” voted for in a general election more than a year ago has not been implemented by the county officials who have taken an oath to uphold the law.

This situation becomes even more confusing when you consider ARTICLE ONE of the Hawaii State Constitution, which definitively states   “All political power of this State is inherent in the people and the responsibility for the exercise thereof rests with the people.  All government is founded on this authority.”  

What has effectively allowed the industry a free pass in continuing to exploit and despoil the natural resources of our island (defined by the State Constitution as held in trust for future generations) is a series of legal and political maneuvers that they believe has placed them beyond the reaches of the law. To the extent that it is confusing, or hard to understand, it has clearly been part of  their objective to make it so.

As documented elsewhere on this site, the political and legal maneuvering probably began before the election, but certainly became visible in the minutes afterwards when both industry and county officials took the position that the expressed will of the people was “legally unenforceable”. They then conspired to file a lawsuit in federal court pretending that their was a dispute between them (with one side, the industry as plaintiff, and the other side, the county officials as the defendants) when, in fact, it was nothing more than a legal maneuver to have the election results invalidated and overturned.

With the complicit support of two federal judges, they succeeded, getting one order on November 17th, 2014 from one federal judge, prohibiting the certification and implementation of the moratorium we voted for, and then continuing on June 30th with an order from the second federal judge making this prohibition final; pending appeal.

On November 30th, the decision by Federal District Court Judge Susan Mollway was appealed to the supervisory authority of the 9th Circuit Court of Appeals based in San Francisco. It is there that lower court decisions from the states of Hawaii, Washington, Oregon, Montana, Nevada, Arizona, and California are reconsidered by a select panel of judges.

The industry’s response to this was to ask the 9th Circuit Court that the appeal not even be reviewed and dismissed altogether, claiming that “we the People” (in this case the will of the majority of the Maui County residence, as represented by the SHAKA movement) had no standing or right to appeal the federal court’s order.

The basis of this seemingly outrageous claim on the industries part was a California case involving an attempt to make gay marriage illegal in that state by citizens group who were successful in passing Proposition 8 calling for a legislative determination that marriage in California be defined legally as being exclusively between a man and a woman. The Supreme Court of the United States ultimately found that the law violated the United States Constitution itself.

The significant differences between our case and the case cited (Hollingsworth v. Perry) although substantial, did not stop the industry from trying to interpret its meaning as eliminating rights affirmatively granted to us within a democracy, and even more strongly affirmed by the Hawaii State Constitution.

In the Hollingworth case, the California State Government actually passed the citizen’s initiative into law and then defended it in court against legal challenges brought by those opposed to it. It was only when a federal judge ultimately found that the state law violated the United states Constitution, that the State Government stopped defending it. Subsequently, it was determined that the originators of the initiative had no independent standing to appeal the federal court decision as their declared interests were no different than the general interests already unsuccessfully argued by the state..

In responding to the industries motion to dismiss (available here) the SHAKA movement, through our attorneys, declared “the procedural facts of this case are distinguishable from the facts before the Court in Hollingsworth. In this case, Appellants were the first to file a lawsuit in state court seeking to compel the County of Maui to enforce the Ordinance. . . Appellants also filed a motion for preliminary injunction in state court seeking this relief. Appellants had the right to raise these issues in state court under the Hawai`i Constitution, which recognizes that “each person has the right to a clean and healthy environment, and may enforce these rights against any party, public or private, through appropriate legal proceedings.” . . . This case was removed to federal court over Appellants’ objections, and the District Court denied Appellants’ requests to remand the case,  and to abstain from deciding the subsequently filed federal lawsuit that the Chemical Companies.  The District Court then decided the cases on summary judgment without conducting an evidentiary hearing on any disputed issues.”

Following procedures established by the court, SHAKA’s appeal will not proceed until the industry’s motion to dismiss it has been decided. The industry to this date has not even bothered to file a response to the 60 pages of compelling legal arguments filed with the court.