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 and Hanapi), Native Hawaiian traditional or customary practices are entitled to protection.
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 “nature spirit and guardian of Lake Waiau” who “presently resides on the summit of Mauna a Wakea.”
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 “has never been previously consulted regarding this and other projects on this sacred mountain. Therefore, she wishes her express concerns to be disclosed.” Her participation in the proceeding “would provide insight not previously disclosed in this CDUA,” Flores wrote in his filing for the petition. “This 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.”
In arguing for Mo`oinanea’s 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 “there’s probably no precedent in other contested case hearings of a petition being filed on behalf of someone such as Mo`oinanea.” Still, Flores continued, she qualifies as a person who has “some property interest in the land” and who “does reside” on the summit.
Also, Flores said, the definition of “person” in the DLNR’s administrative rules “is broad and inclusive enough to admit Mo`oinanea” as an “appropriate individual.”
“Mo`oinanea … does have human blood in her. She does have a genealogy. We have a genealogy for Mo`oinanea that extends back four generations,” Flores said. Not only does she have physical attributes, she also has, according to Flores, a voice, which she “has presented … to us family members of the Flores-Case Ohana.”
Tim Lui-Kwan, an attorney representing the University of Hawai`i at Hilo, which had applied for the permit, opposed Flores’ request. “With all respect to Mr. Flores, we’re 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.” But, he continued, “legally, under the definition provided in the rules Mr. Flores referred to, Mo`oinanea is not a person.”
Kealoha Pisciotta of Mauna Kea Anaina Hou spoke up in defense of Flores’ contention. This particular contested case, she said, “does involve the question of our religious beliefs and uses, … which include the practice of honoring Mo`oinanea.”
Also, she went on to say, “part of our cultural belief is that things that are of the spirit world also have a human form or physical form…. To deny her a place would be a very major pono`ole, unrighteousness.”
Before the hearing ended, Flores attempted to bolster his case, conceding that “this may be a concept that many cannot understand.” Of Mo`oinanea, he said, “you could say she’s a spirit, but yet she’s not.” In the petition, she is described as a nature spirit “because that’s the only English terminology that can be placed on that.”
“She has humanality connected to her,” he continued, and if not everyone can see her, “it’s 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.” Flores then read into the record an affidavit he had made, attesting to Mo`oinanea having authorized him and three family members – Pua Case, her daughter, Hawane Rios, and Case’s and Flores’ daughter Kapulei Flores – to act on her behalf and to exercise “all of her legal rights and powers.” That, Flores argued, should dispense with the argument that she could not represent herself. “We say that she could have standing, represent herself with the assistance of a cultural interpreter… 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.”
Aoki recommended that the Land Board deny status as a petitioner to Mo`oinanea, and on June 23, the board did just that.
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 “gift of seeing and communicating with ancestral guardians, divine beings, and nature spirits.”
“Mo`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,” Kapulei said in written testimony. “She 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” – Hawaiian for navel – “on the top of the mountain that is sacred and the telescopes block the piko that connects with Ke Akua and `aumakua. They wished that the observatories were never there and they don’t 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.”
Kapulei said that Mo`oinanea told her that the TMT “might change and affect the weather patterns on the mountain and in the areas below such as Waimea.” It has, she continued, already damaged the sleeping area of Poliahu.
If telescopes continue to be built atop Mauna Kea, “some spirits might have to move off [the] mountain,” Kapulei said. “If 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.”
“You are killing/ruining my precious mountain and all for what?” her testimony concluded. “To 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?”
In the end, Kapulei Flores’ testimony was not received into evidence. According to Pua Case, Kapulei “was prepared to be here. She is the direct communicator with Mo`oinanea.” Kapulei had attended the fourth day of hearings (out of seven), but, Case said, “she became ill after that” and would be unable to testify.
“When told she was not going to testify,” Case continued, “she became very upset… She had objections because we refused to let her testify. She said, ‘I have worked too hard for this. I love my mauna and Mo`oinanea.’”
The decision to pull Kapulei from the witness lineup settled the arguments over whether to accept testimony from Mo`oinanea.
But the petitioners other witnesses who testified on Mo`oinanea’s behalf or relayed what she had said to Kapulei Flores.
There was, for one, Diana LaRose, who, she claimed, had been termed a “sensitive” since the age of 5. “I can communicate with animals, forces of nature, and the Earth,” she said in testimony to the hearing officer. “All 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.” The TMT she said, would be “desecration” to the mountain.
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 “has been verified” as being Mo`oinanea “by people I didn’t even know,” LaRose said.
Kalani Flores said in his testimony that Mo`oinanea had spoken of the past uses by Hawaiians of Lake Waiau. Mo`oinanea, he said, “is fine with people putting their piko [umbilical cords] in the lake, but you have to have roots to the mountain.”
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.
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 “a guardian force of nature from the depths” of the mountain delivered a warning. “He is a guardian who came from the very depths of the mountain, way below the crust of the ocean floor,” Flores stated. “He was filled with sadness because of the observatories on her [Mauna Kea’s] shoulders and breasts were causing such desecration.” Other guardians also had been “awakened and are on alert” regarding the TMT proposal, he said. The guardian, Flores said, “declared that those who are planning to cause further desecration on Mauna a Wakea are ‘ignorant and lost,’” and intimated that dire things would happen if the project went forward. “There’s those on the mountain that have said there will be an impact,” Flores said in his closing statement. “What’s on the mountain is at capacity. Any more will go beyond what the mountain can take,” he said. Those on the mountain “won’t retaliate – 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.”
Flores also stated that the mountain “has 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’s interconnected.”
In written testimony, Flores addressed other aspects of Mauna Kea that may have escaped the notice of science. The mountain “anchors a very complex multi-dimensional over-fold … 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.” 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.
(A more mundane explanation of the cloud phenomenon was provided by Derek Wroe, lead forecaster at the National Weather Service in Honolulu. “One 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… Once the ice formed, the supercooled water nearby quickly froze, forming show, which then fell out.” Wikipedia notes that this type of cloud formation is also called a “fallstreak hole” or a “hole punch cloud.”)
Findings of Fact
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 – 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 – 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.
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.
For example, Mo`oinanea is said to have been “born 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,” according to finding of fact (FOF) No. 306. FOF No. 309 states that Poli`ahu and other ancestrial akua, `aumakua, and kupua connect with Ke Akua (The Creator) on the summit. “They wish to have no other observatories on the mountain for if they continue to build, some spirits might have to move off [the] mountain.”
There’s FOF 311, referring to Mauna Kea as the “piko” of the island: “When we understand the three piko of the human anatomy” – the umbilical navel, the genital navel, and the head navel, or fontanel, according to Flores’ testimony – “we may begin to understand how they manifest in Mauna Kea. Mauna Kea as the fontanel requires a pristine environment free of any spiritual obstructions.”
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.
The university argued that such beliefs are not grounds for denial of the Conservation District permit. “In terms of the claims of violations of religious beliefs,” Tim Lui-Kwan said in his closing statement, “… courts have uniformly denied recognition of religious beliefs as a basis for stopping any kind of an action like this.” The Establishment Clause of the U.S. Constitution, he noted, prevented the official recognition of any religion. “As a result, he said, what the analysis should focus on is “whether 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 and PASH was actually violated.”
The rights that do enjoy legal protection, Lui-Kwan said, relate to practices, not beliefs. On this score, Lui-Kwan said, “the petitioners have not met their burden of proof that the project would violate or interfere with their constitutional rights.” To show this, he said in remarks directed to the petitioners, “you have to demonstrate that the traditional and customary practice or right you’re 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’ve actually seen from them is that somehow sacred viewplanes are now being violated and infringed on.”
Statements in the university’s 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 “the placement or erection of any solid material on land.” If this occurs on land in the Conservation District, “and if they remain on the land for more than 30 days … then under the express terms of the Conservation District rules, there is a ‘land use’ that requires a permit.”
Volume 22, Number 7 — January 2012