For more than a decade, beginning in 1992, Riki May Amano served as a judge in Hawai‘i’s 3rd Judicial Circuit, which, like all judicial circuits in the state, is bound by strict rules of evidence and procedure that, generally speaking, give a certain decorum to court proceedings.
In quasi-judicial contested case proceedings, however, the leeway afforded to participants is somewhat more lax, which can result in exchanges between witnesses and their cross-examiners that are, safe to say, unlike anything Amano ever saw in her courtroom.
Consider the cross-examination of the university’s very first witness, Perry White, with the firm of Planning Solutions, which prepared the Conservation District Use Application for the Thirty-Meter Tele- scope.
Not long after White took the stand on October 20, Pua Case, on behalf of the Flores-Case ‘Ohana, asked him, “Do you believe Mauna Kea is sacred?”
Ian Sandison, representing the University of Hawai‘i, objected, noting that the question went well beyond the scope of White’s direct testimony.
Amano sustained the objection, but then Brannon Kealoha objected: “How come he” — pointing to Sandison — “can object and I can’t? I’m objecting to the objection.”
As White was cross-examined by Harry Fergerstrom, Fergerstrom stated that the rocks that would be excavated during construction of the TMT are his kupuna: “Not only are you going to excavate my kupuna, you’re going to spread them around and build on my kupuna.”
Fergerstrom then apologized for his disorganized line of questioning: “I apologize for having to use the bathroom but I lost my entire train of thought… I had a really great train of thought going but I lost it when I had to go to the bathroom.”
What follow are excerpts from the evidentiary hearings in October and November.
‘Consent of the Gods’
On November 2, Dexter Kaiama, attorney representing KaHEA, cross-examined master navigator Chad Kalepa Babayan, a witness for the University of Hawai‘i.
Dexter Kaiama: Do you know if any- one associated with the building or the construction of the telescopes on Mauna Kea has asked for and received the full consent of the gods of Mauna Kea? Do you know?
Chad Babayan: Me personally? My knowledge and perspective? I do not recognize the deities of my ancestors because in 1819, under the wisdom of our then great leaders principally Liholiho Kamehameha the second, his mother, Keopualani, the regent Ka‘ahumanu, the ranking ali‘i Kalanimoku, and the high priest Hewahewa, abolished the religion. So I would need clarification on gods. Are you talking about gods pre-1819 or — because I don’t recognize, and I do this in full recognition that other people do continue to recognize the religious order but I personally do not recognize the religious order because I wish to follow the great wisdom of our chiefs. So I am not sure how to answer this question.
TMT and Standing Rock
Clarence M. Kaho‘okahi Kanuha, a leader of the TMT protests in 2015, queried master navigator Chad Kalepa Babayan on his view of those protests, among other things.
Kaho‘okahi Kanuha: Are you aware of the arrests that took place on Mauna Kea between March and December of 2015? Chad Babayan: Yes, I am.
Kanuha: And are you aware that these arrests occurred due to the fact that TMT and its affiliates were attempting to build on Mauna Kea?
Babayan: Yeah, I believe it’s a process of civil disobedience.
Kanuha: Do you believe that the building of the TMT on Mauna Kea is worth — and I won’t throw a number there because again that calls for speculation, I guess — so do you believe that the building of the TMT is worth many Hawaiians and non-Hawaiians alike getting arrested to protect their sacred mauna?
Babayan: I believe that people have to stand up for what they believe in. So I believe that if they are arrested, it’s part of the process.
Kanuha: Are you aware of the situation taking place in Standing Rock, North Dakota, at this time?
Pete Manaut, attorney for UH: Objec- tion. Irrelevant, your honor.
Judge Amano: I’m going to overrule. Go ahead.
Kanuha: Are you aware of the situation—
Amano: But I’m going to ask you to kind of —
Kanuha: Slow down.
Amano: Slow down, yes —
Kanuha: Kala mai.
Amano: But wind up. Slow down and wind up your questioning.
Kanuha: Are you aware of the events and the situation taking place as we speak at Standing Rock, North Dakota? Babayan: Yes, I am aware of the protests —
Kanuha: Taking place there.
Babayan: — against building the pipeline on private land because it’s going to affect adjacent Indian lands and their waters. Kanuha: Mahalo. Do you believe the build- ing of the TMT is worth bringing a Standing Rock-like situation here to Hawai‘i? Babayan: Are you asking me to compare Standing Rock to TMT? Kanuha: I’m just asking if building the TMT is worth bringing a situation like what’s taking place at Standing Rock to Hawai‘i?
Babayan: I don’t know how to compare. Standing Rock is a separate issue. Kanuha: Whatever you know of that’s taking place at Standing Rock at this point in time, is the building of TMT in Hawai‘i worth bringing whatever knowledge it is that you have of that place and that situ- ation here to Hawai‘i?
Babayan: Yes, I think it is.
The Northwest Ordinance of 1787
Dwight Vicente embraces the view that a law passed by the Congress of the Confederation of the United States in 1785 and amended in 1787 means no states have been admitted to the union since that time. Here are selections from his cross-examination of Perry White:
Dwight Vicente: Do you have training to be a principal planner?
Perry White: Yes.
Vicente: And where is the training? Is it a college degree and in what country?
White: I obtained a master’s degree in regional planning from the University of Pennsylvania, which is in the United States.
Vicente: One of the 13 states, right? Perpetual states. How do their planning be transferred to this kingdom, or applied to this kingdom, I should say?
Ian Sandison: Objection, relevance. Judge Amano: [to Vicente] Why does it matter in this case?
Vicente: It does, because we’re dealing with two different countries, that a treaty was continued through Article 4 Section 3 Clause 1 in 1898 by the U.S. Congress to continue the Reciprocity Treaty of 1875 amended in 1887.
Vicente: You stated in your testimony that Mauna Kea is in different subzones.
White: I said that there are different sub-zones to the Conservation District. I said that the portion that was the subject of the application was in the resource subzone of the Conservation District. I said that there are other subzones on Mauna Kea.
Vicente: When you said resource, did you mean money-making?
White: That’s not how resource is defined in the Conservation District regulations.
Vicente: Does it have to draw in revenue?
Sandison: Objection. Argumentative. Amano: I didn’t understand the question. Does it have to draw in revenue to be considered a resource?
Amano: I’m going to overrule the objection.
Vicente: Is it based on gold and silver?
White: I don’t understand the question.
Vicente: How are they expected to pay for it, in gold and silver?
Sandison: Objection. Vague and ambiguous.
Amano: This witness, how would he know that?
Vicente: That’s what I’m getting to.
Amano: You have to establish that he would have it in his knowledge to answer the question.
Vicente: Today everybody is using federal reserve notes, credit cards, and cyber money and all that. It’s not authorized by either the kingdom’s constitution nor the U.S. Constitution. So we’re playing with Monopoly money, make believe, but the end product, the land, are real. The documents are fraud.
Amano: I’m going to have to sustain the objection as to that particular question, and ask you to move on to the next ques- tion, please.
Vicente followed much the same line of questioning in his cross-examination of James Hayes, the planner who oversaw preparation of the environmental impact statement for the TMT.
Vicente: Where were you born anyway?
James Hayes: California.
Vicente: Are you a U.S. citizen?
Vicente: Have you been naturalized to one of the 13 states?
Amano: May I ask where you are going with this line of questioning, please.
Vicente: The conservation use is based on Indian land. We don’t have Indian lands here. If you read Rice versus Cayetano, it says Native Hawaiians are not Indians. And so with the case Patrick Kawaiolaa versus I forgot the name. We don’t have Indian lands here, so to apply Indian law on crown and government lands here is questionable. Conservation use designa- tion is over Indian lands only.
Amano: So, why does his citizenship have anything to do with that line of questioning, for one thing, and, number two, I think we already said we weren’t going there as a matter of what’s relevant to this contested case hearing.
Vicente: Yeah, but you see the problem is there’s a big gap in the history. 1776 and then you go to 1959. We’re lost in space right there. And without fillin’ that historical gap we’ll be lost.
Amano: And how is this witness going to fill that gap?
Vicente: Well, he’s part of the gap, too. He says he was born in California. That’s a gap, too.
Amano: Okay, so –
Vicente: The United States got only 13 states and the five equal-footin’ states under the Northwest Ordinance. And California is not one of them.
‘Did Poli‘ahu … Ever Give Permission for the TMT?’
On November 16, E. Kalani Flores, one of the original petitioners and an instructor of Hawaiian studies at the Hawai‘i Community College — Palamanui campus in Kona, cross-examined Wallace Ishibashi, Jr., a cultural consultant who works with the Office of Mauna Kea Management and claims lineage from Poli‘ahu, the legendary goddess of Mauna Kea.
Kalani Flores: In your written direct testimony, page one, you make reference to being born and raised in Keaukaha, is that correct?
Wallace Ishibashi, Jr.: Keaukaha, yes.
Flores: And you make reference to family roots to Waipio Valley in Hamakua and Miloli‘i in South Kona, is that correct? Ishibashi: Yes.
Flores: And you make reference to family connections to Pu‘u Poli‘ahu, is that correct?
Flores: When you say Poli‘ahu is in your genealogy, are you referring to an individual or are you referring to the deity or goddess Poli‘ahu?
Ishibashi: Probably both.
Flores: So have you consulted with the goddess Poli‘ahu regarding this TMT project?
Ishibashi: Yes, I have — not Poli‘ahu, but to my ‘aumakua, yes.
Flores: That was not the question. Did you ever consult with Poli‘ahu, the known —
Flores: So Poli‘ahu, the goddess and deity of Mauna Kea, do you know if she ever gave permission for the TMT projects?
Ishibashi: Excuse me?
Flores: So the goddess and deity Poli‘ahu, on Mauna Kea, to your knowledge, did she ever give permission for the TMT project?
Tim Lui-Kwan [attorney for the University of Hawai‘i]: Objection. Assumes a fact not in evidence here, that Poli‘ahu does give consent to anything.
Amano: I’m going to overrule. Please answer.
Additional verbatim excerpts from the TMT contested case hearing are posted in the EH-Xtra section of our website: http:// www.environment-hawaii.org. Videos of all hearings are available from the Na Leo TV website: http://naleo.tv/vod.
— Patricia Tummons