case 1:15-cv-00338-lek-bmk document 1 filed 08/24/15 page 1 … · 2015-08-01 · kw an, and arsima...

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-- FICTD IN THE UNITED STATES DISTRICT COURT

DISTRICT OF HAWAII

AUG 24 2015 at3 o'clock anoJ-Gi1n £ M \ .-

ATTORNEYS FOR DEFENDANTS: SUE BEIT1A-:-CLER°K . I C. KAUI JOCHANAN AMSTERDAM 1415 PENSACOLA ST., #12 HONOLULU, HAW AU 96822 808-450-1166

WILLIAM J. WYNHOFF AND JULIE H. CHINA DEPUTY ATTORNYS GENERAL, FOR BLNR et al STATE OF HI., 425 QUEEN ST., HON., HI.96813 IAN L SANDISON, JAY S HANDLIN,TIM LUI-

shaloha [email protected] PROSE

KW AN, AND ARSIMA A. MULLER ASB TOWER, 1001 BISHOP ST.,# 2200 HON., HI. 96813, ·808-523-2500

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAW All

C.KAUI JOCHANAN AMSTERDAM 1415 PENSACOLA ST., #12 HONOLULU, HAW All 96822 NATIVE HAWAIIAN BENEFICIARY

PLAINTIFF

vs.

V15

STATE OF HAW All, OFFICE OF THE GOVERNOR, GOVERNOR DA YID IGE, BOARD CHAIRMAN OF TMT OBSERVATORY CORP., CHAIRMAN HENRY YANG, ASSOCIATED STATE AGENCIES, BOARD OF LAND AND NATURAL RESOURCES, STATE OF HAWAII, DEPARTMENT OF LAND AND NATURAL RESOURCES, STATE OF HAWAII, DEPARTMENT OF LAND AND NATURAL RESOURCES, STATE OF HAW All, SUZANNE CASE, IN HER OFFICIAL CAPACITY) AS CHAIR OF THE BOARD OF LAND AND NATURAL RESOURCES AND DIRECTOR OF THE DEPARTMENT OF LAND AND NATURAL RESOURCES, THE UNIVERSITY OF HAW All AT HILO AND MANO A, REPRESENTATIVES OF THE NATIONS OF CHINA, INDIA, JAPAN, CANADA, AND THE UNITED STATES INVOLVED IN THE TMT PROJECT, ALL REPRESENTATIVES AS INDIVIDUALS AND IN THEIR OFFICIAL CAPACITY, RESPONDENTS/ DEFENDANTS.

DEFENDANTS

3 38 LEK ., M" PLAINTIFF'S COMPLAINT REGARDING THE THIRTY ~ETER TELESCOPE ATOP THE SACRED VOLCANIC MOUNTAIN OF Mauna Kea F1LED ON AUGUST 24, 2015

Case 1:15-cv-00338-LEK-BMK Document 1 Filed 08/24/15 of 14 PageID #: 1

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COMPLAINT

I. INTRODUCTION

Plaintiff C. Kaui Jochanan Amsterdam, a Native Hawaiian or Kanaka Maoli

Beneficiary of the Native Hawaiian Trust Fund established by the Hawaii Admission

Act of 1959 as enacted by the U.S. Congress, a descendant of a full-blooded, Native

Hawaiian, Alii Kalakauaehu line, former Prime Minister of the Interim Government

of The Kingdom of Hawaii, Member of the Neighborhood Board # 10 serving and

representing Native Hawaiians, their needs and interests in Lower Punchbowl, which

includes that area of the Papakolea Hawaiian Homestead, respectfully comes before

the Honorable United States District Court for the District of Hawaii and presents a

Complaint that the Defendants as Hawaii State Officials breached their Trust duties

as presented in the Hawaii Admission Act of 1959, violated their Mandate as pre

sented in the Constitution of the State of Hawaii, and have violated the Civil and Hu

man Rights of the Plaintiff and Native Hawaiians, who include those Kanaka Maoli

living in the Papakolea Hawaiian Homestead whose needs and interests the Plaintiff

serves to address and meet.

The Defendants are advancing the TMT Project to currently build the

worlds largest telescope atop the volcanic mountain of Mauna Kea. These Defen-

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dants represent the State of Hawaii and/ or a part of the TMT Project and are suppor

ted and encouraged by the State of Hawaii through Departments, Agencies, Offices,

Organizations, and such. For example, the Office of the Governor through Governor

David Ige has advanced measures to probibit Native Hawaiians from accessing the

upper parts of Mauna Kea and such actions also have resulted in the arrests of Native

Hawaiians. Board of Land and Natural Resources, State of Hawaii, Chairperson Su

zanne Case, and Department of Land and Natural Resources, State of Hawaii, Di

rector Suzanne Case, have also administered and enforced such actions. TMT Obser

vatory Corp., Chairman Henry Yang, University of Hawaii at Hilo, and Represen

tatives for the Nations of China, Japan, India, Canada, and the United States also

have been a part of such coordinated support and advancement of the TMT Project.

The advancement of the TMT Project and subsequent restrictive and prohibitive

treatment and arrests of Native Hawaiians by the Defendants are in violation of the

State of Hawaii ' s responsibilities as mandated by the Hawaii Admission Act of 1959,

the Constitution of the State of Hawaii, and Congressional Acts of the United States

Congress. Accordingly, the Plaintiff cJa ims as viol.at i ve of such man

dated obligations the actions of the Defendants in advan

cing the TMT Project and asks the Federal Court to enjoin

such actions.

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2. BACKGROUND

First, the Defendants, who are representatives of the State of Hawaii and

other associates and supporters of the TMT Project, violated the mandated obligation

presented in the Hawaii Admission Act of 1959. According to the Admission Act,

the State of Hawaii is the trustee of the public trust and is obligated to use the trust

"for the betterment of the conditions of Native Hawaiians, as defined in the Hawai

ian Homes Commission Act, 1920, as amended." Section 101 of the Act explains

also that the aims of the Hawaiian Homelands program is to "enable native Hawaiians

to return to their lands in order to fully support self-sufficiency for native Hawaiians

and the self-determination of native Hawaiians in the administration of the Act, and

the preservation of the values, traditions, and culture of native Hawaiians." The Act

. also is not limited to a matter of homestead.

Second, Mauna Kea is greatly important and sacred in terms of the values,

traditions, and culture of native Hawaiians. Inasmuch as the Plaintiff and other Na

tive Hawaiians are restricted and prohibited access to the upper part of Mauna Kea

or even being on Mauna Kea at certain times and arrested for doing so by the State,

the State of Hawaii is deliberately in violation of its mandated obligation(s) as pre

sented in the Hawaii Admission Act of 1959 and as defined in the Hawaiian Homes

Commission Act, 1920, as amended. Native Hawaiians hold Mauna Kea as part of

their belief as being sacred. Such sacredness is being violated. The Thirty Meter

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Telescope of the TMT Project is incongruent with Native Hawaiian belief and

desecrates Mauna Kea. It's like putting a very large inconspicuous telescope in the

courtyard of the Western Wall in Jerusalem or in a church or synagogue. Native

Hawaiian protests to telescopes are not new, but, while ongoing and as exempli

by the Daniel K. Inoye Telescope, have been disregarded. The Thirty Meter Teles

cope is "the straw that broke the camel's back".

According to Native Hawaiian belief, Mauna Kea is the meeting point bet

ween the sky and the earth, a temple built by the divine Creator and the point of Ha

waii's ties to Creation and itself. Thus, Kanaka Maoli believe that technology such

as the Thirty Meter Telescope desecrates the sacred summit ofMauna Kea as it

would do if it were placed on the Temple Mount in Jerusalem. It also desecrates

hundreds of burial sites and scarce natural resources on the Mountain. Adding to the

desecration, telescopes also have left much debris scattered about like the debris left

in outer space through space exploration. Added to such desecration is the Defen

dant's prohibition of the Plaintiff and Native Hawaiians from exercising their Right

of accessing Mauna Kea and being arrested for doing so. Such action and treatment

by the Defendants of the Plaintiff and other Kanaka Maoli is in violation of Native

Hawaiian's Rights and the Defendant's mandated obligation to protect and preserve

such Native Hawaiian Rights.

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Third, the Defendants, who are representatives of the State of Hawaii and

other associates and supports of the TMT Project, violated the mandated responsibi

lity presented in the Constitution of the State of Hawaii. According to the Constitu

tion of the State of Hawaii, Article XII, Hawaii Affairs, Section 7. "The State re

affirms and shall protect all rights, customarily and traditionally exercised for subsi

stence, cultural, and religious purposes and possessed by ahupua'a tenants who are .

descendants of Native Hawaiians". The Constitution of the State of Hawaii obligates

the State and its Agencies to protect and preserve such Native Hawaiian Rights.

Again, inasmuch as the State of Hawaii has been negligent in fulfilling its mandated

obligation(s) as presented in the Hawaii Admission Act of 1959 and as defined in the

Hawaiian Homes Commission Act, 1920, as amended, the same negligence exists in

regards to it being negligent in fulfilling its mandated obligation(s) as presented in

the Constitution of the State of Hawaii.

Fourth, the State and its Agencies are obligated in order to preserve and

protect such Rights to conduct detailed inquiries into impacts on those Rights of

things proposed or pursued to ensure that what is being done doesn't violate Kanaka

Maoli Rights. Accordingly, The Plaintiff claims that the State did not fulfill its

mandated obligation to protect and preserve traditional and customary Rights of

the Plaintiff and other Native Hawaiians as mandated in Article XII, Hawaii

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Affairs, Section 7, and conduct mandatory sufficient detailed inquiries into the

impacts on Native Hawaiian Rights by the TMT Project. Thus, because it failed to

conduct adequate mandatory detailed inquiries into the impacts on Native Hawaiian

Rights by the TMT Project to ensure it doesn't violate Kanaka Maoli Rights, the

Defendants and accordingly the State of Hawaii's actions previously described in

the advancement of and as a consequence to the TMT Project, violated their

mandated obligation to preserve and protect the Rights of Native Hawaiians as

presented in the Constitution of the State of Hawaii and the Hawaii Admission Act

of 1959. The result of such an inadequate impact study is exemplified in the rela

tively recent case of the Hawaii Superferry in which the advancement of the Super

ferry Project was ordered to stop by the Court because of an inadequate impact

study. Such an inadequate impact study and result also applies to the TMT Project.

Fifth, the Defendants and accordingly the State failed to satisfy their Statu

tory and Constitutional obligations. Such a lack of responsibility is supported also

by a case on point of Ka Pa'akai 0 Ka Aina v. Land Use Commission (Ka Pa'akae),

94 Hawaii 31, 7 p. 3 d 1068 (2000). As Ka Pa' akai claimed before the Court that

Members of their Native Hawaiian Community would be adversely affected by the

Hawaii Land Use Commission's decision because their proposed development would

infringe upon the exercise of their traditional and customary rights, so also, the Plain

tiff C. Kaui Jochanan Amsterdam and members of the Native Hawaiian Community

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are adversely impacted by the Defendant's advancement of the TMT Project and

their Right to exercise their traditional and customery values and actions are in

fringed upon and further undermined, weakened, and destroyed rather than being

preserved and protected as mandated by Law.

Sixth, according to the Native Hawaiian Education Act of 1994, between the

U.S. Federal government and Native Hawaiians and thereby the Plaintiff through

Congressional Acts, there is special political relationship, which commits the U.S.

"to protect and preserve their (Native Hawaiian' s including the Plaintiff) inherent

right of freedom to believe, express and exercise their Religious Customs, Beliefs,

Practices, and Language(s) as presented in the Native Hawaiian Education Act of

1994 and the American Indian Religious Freedom Act of 1978 (AIRF A). As the

State of Hawaii, so also the U.S. Federal government has a mandated obligation to

protect and preserve the traditional and customary practices of Native Hawaiians.

The special political relationship between the U.S. Federal government and Native

Hawaiians and also a unique political status of Native Hawaiians are evidenced by

the inclusion of Native Hawaiians in numerous Congressional Acts of the U.S.

Congress which include the Native American Act of 1974 (42 U.S.C. 2991 et seq.),

the American Indian Religious Freedom Act ( 42 U.S.C. 1996), the National

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Museum of the American Indian ' Act (20 U.S.C. 80 q et seq.), the Native American

Graves Protection and Repatriation Act (25 U.S.C. 3001 et seq.), the National

Historical Preservation Act ( 16 U.S.C. 470 et seq.), the Native American

Language Act (25 U.S.C. 2901 et seq.), the American Indian, Alaskan Native, and

Native Hawaiian Culture and Art Development Act (20 U.S.C. 4401 et seq.), the

Workforce Investment Act of 1998 (29 U.S.C. 2801 et seq.), the Older American

Act of 19655 (42 U.S.C. 3001 et seq.), Other acts include the Native Hawaiian

Health Care Improvement Act of 1992, the Rehabilitation Act of 1973, the Native

American Programs Act of 1974, the Development Disabilities Assistance and Bill

of Rights Act Amendments of 1987, the Disadvantaged Minority Health Improve

ment Act of 1990, the Indian Health Care Amendments of 1988, an S.B. No. 1520,

which became Act 195 approved by Governor Neil Abercrombie of the State of

Hawaii on July 6, 2011, which advanced Native Hawaiian Recognition and a Native

Hawaiian Governing Entity. The numerous and diverse Congressional Acts as

exemplified also in the Hawaii Admission Act of 1959 demonstrate Native

Hawaiian's special political relationship with the U.S. Federal Government, the

unique political status of Native Hawaiians, the mandated responsibilities of the U.S.

Federal Government and the State of Hawaii toward Native Hawaiians, and accor

dingly, the Defendants' and thereby the State of Hawaii's violation not only of Ha

waii State, but also U.S. Federal mandated obligations and Acts.

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Seventh, the factors of their Special Relationship(s) and Unique Status, pro

vide Native Hawaiians a unique impact or priority of exercising their Rights and

being able to to overcome claims by others that their right of Equal Protection or

being given priority is being violated. Such applicable cases on pointinclude Mor

ton . v .' Mancari particularly and also Delaware Tribal Business Committee v.

Weeks and United States v. John. Accordingly, the Plaintiffs and Native

Hawaiians' Rights "to protect and preserve their inherent Right and Freedom

to Believe, Express, and Exercise their Religious Customs, Beliefs, Practices,

and Language(s)" as provided for in U.S. Federal and Hawaii State Laws take

priority over Defendants' claims to advance the TMT Project over the Rights of

the Plaintiff and Native Hawaiians in this situation and case.

Eighth, the existence and advancement of numerous Congressional Acts,

which include those previously presented, demonstrate that the U.S. Federal Go

vernment and thereby the U.S. Federal Courts have jurisdiction in this case. Nu

merous Congressional Acts and under 42 U.S.C. Sec. l 983including the Hawaii

Admission Act of 1959 give the U.S. Federal Government and thereby the U.S.

Federal Courts jurisdiction to intervene also to ensure that Native Hawaiian Rights

have not been violated. Accordingly; a Breach of Trust and a Violation of Hawaii

State and U.S. Federal Mandated Obligations is an applicable Rule of Law of this

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case brought against the Defendants and allowing the U.S. Federal Courts to have

jurisdiction in this case. The Court's Right to intervene also abrogating State's

Eleventh Amendment immunity was advanced because Congress unequivocally

expressed its intent to abrogate immunity, and Congress had authority to adopt

Title IX pursuant to enforcement provisions of the Fourteenth Amendment with

such action supported by cases on point including Clark v. State of Cal., C.A.9

(Cal.) 1997, 123 F. 3d 127 and Franks v. Kentucky School for the Deaf, C.A.

6(Ky.) 1998; 142 F. 3d 360. Constitutional Law 4873; Federal Courts 265;

Constitutional Law 3398, which demonstrate that the U.S. Federal Courts have

jurisdiction in this case.

3. CONCLUSION

Therefore, with God's Good Grace, the Plaintiff, C. Kaui Jochanan Amster

dam, a Native Hawaiian Beneficiary of the Native Hawaiian Trust Fund, a des

cendant of a full-blooded, Alii Kalakauaehu line, former Prime Minister of the In

terim Government of The Kingdom of Hawaii, and current Member of the

Neighborhood Board, District 10, over the Lower Punchbowl and Papakolea

Hawaiian Homestead, respectfully comes before the Honorable United States

District Court for the District of Hawaii and presents a Complaint.

The Complaint presents that ( 1) the Plaintiff is a Beneficiary of the Native

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Hawaiian Trust Fund, which was established by a Congressional Act of the U.S.

' Congress, the Hawaii Admission Act of 1955, and the mandated obligation of the

Act, along with other U.S. Federal and Hawaii State mandated obligations are

being violated by the Defendants as they advance a Project called the TMT Project

to build the world' s largest telescope atop the mountain of Mauna Kea as described

within this Complaint. The Plaintiff and other Native Hawaiians are being adversely

impacted and injured by being prohibited from accessing and being on certain areas

and arrested if doing so. The mountain is what is part of what is called Crown

Lands, which is of The Kingdom of Hawaii. As a Beneficiary of the Trust Fund and

the Crown Lands, injury is added to by humiliation. (2) Inasmuch as Mauna Kea is

Crown Land, which is part of The Kingdom of Hawaii, The Kingdom of Hawaii is

excluded from anything to do with the TMT Project. With the "Aina" or land being

an important part of Hawaiian Culture, particularly the Crown Lands, and being a

Beneficiary, but having no say about or access to Mauna Kea, the Plaintiff is further

injured culturally and, to access Mauna Kea, possibly physically with arrest. (3) Ac-

cording to Native Hawaiian Belief, Culture, History, and Values, Mauna Kea is

sacred to Kanaka Maoli and the world' s largest telescope of the TMT Project dese-

crates Mauna Kea. It's like putting such a telescope in the courtyard of the Wailing

or Western Wall in Jerusalem. The reaction by Jews would be far more hostile.

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The Plaintiff and Native Hawaiians are injured and humiliated by such a desecration

of the "sacred ain~' of Mauna Kea. Injury is to the Plaintiff and Native Hawaiians

Belief, Culture, History, Values, Self-Image and Identity, which violates the

Rights of the Plaintiff and mandated obligation of the State of Hawaii. ( 4) With

a disregard for Native Hawaiian's Special Relationship with the U.S. Federal Go

vernment and State of Hawaii and their Unique Status, the resulting lack of the

mandated obligation of preservation and protection is the subsequent injury

suffered by the Plaintiff and Native Hawaiians. Finally, the irreversible damage

to the aina of Mauna Kea, the debris accumulated over the years and with the

advancement of the TMT Project, the desecration of existing burial and cultural

sites, and disregard for the Plaintiff's and Native Hawaiians Culture, Values,

Beliefs, History, and Perspective with such damage, accordingly, is the damage

and injury perpetrated on the Plaintiff and Native Hawaiians. Such damage or

injury alluded to in the Apology Bill of the U.S. Congress in clarifying

"that the health and well-being of Native Hawaiians are intrinsically tied to their

deep feelings and attachment to the "land or Aina". Such attachment is manifested

in Mauna Kea with great damage and injury coming subsequent to such

attachment.

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Thus, the Plaintiff requests that the Honorable Court accept his Complaint

and all pending Motions, particularly his Motion with elaborations before the

Honorable Court.

Dated: Honolulu, Hawaii, August 24i2015

· .. ;i:~ PROSE

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case 1:15-cv-00338-lek-bmk document 1 filed 08/24/15 page 1 … · 2015-08-01 · kw an, and arsima...

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