Lanny

Alan Sinkin
Tx. Bar #18438675
P. O. Box 944
Hilo, Hawaii 96721
(808) 936-4428
lanny.sinkin@gmail.com
Counsel for Plaintiff

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII






)
Frank Kamealoha Anuumealani Nobriga, )
Civ. No. 15-cv-00254 DKW BMK






)


Plaintiff


)
PLAINTIFFS OPPOSITION TO







)
COUNTY DEFENDANTS ROTH,






)
NAGATA, AND BAILEY MOTION



Vs.


)
TO DISMISS; EXHIBITS 1 14;






)
CERTIFICATE OF SERVICE






)

David Y. Ige, et al.,


)
OCTOBER 16, 2015







TIME: 9:30 A.M.


Defendants

)
JUDGE DERRICK K. WATSON
_________________________________________________)

PLAINTIFF NOBRIGAS MEMORANDUM IN OPPOSITION TO DEFENDANTS MITCH
ROTH, IN HIS CAPACITY AS HAWAII COUNTY PROSECUTING ATTORNEY, DARIEN
NAGATA, IN HER CAPACITY AS HAWAII COUNTY DEPUTY PROSECUTING
ATTORNEY AND ELIZABETH BRITT BAILEY, IN HER CAPACITY AS HAWAII
COUNTRY DEPUTY PROSECUTING ATTORNEYS MOTION TO DISMISS [17]
AMENDED COMPLAINT, FILED JULY 24, 2015; MEMORANDUM IN SUPPORT OF
MOTION, DECLARATION OF ELIZABETH BAILEY; EXHIBITS 1 57;
CERTIFICATE OF SERVICE

TABLE OF CONTENTS

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2


A. The Declaration of an Emergency was Pretextual . . . . . . . . . . . . . . . . . . 2


B. Those Being Charged and Prosecuted Lack Criminal Intent . . . . . . . . . 3


C. Hawaiians Are Being Prosecuted Because They are Reasserting


Their Identity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5


D. Injunctive Relief is Appropriate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6



E. Injury to Plaintiff is Real . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6


F. Plaintiffs Amended Complaint Satisfies the Pleading Requirements


To Establish Jurisdiction for this Honorable Court. . . . . . . . . . . . . . 15


G. This Case is that Unique Case Favoring an Exception to the Younger


Abstention. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

III. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

TABLE OF AUTHORITIES

CASES

Burns v. Reed, 500 U.S. 478 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Burwell v. Hobby Lobby Stores, 134 S. Ct. 2751 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . 15

Citizens United v. Federal Election Commission, 558 U.S. 310 (2010) . . . . . . . . . . . 17

Dombrowski v. Pfister, 380 U.S. 479 (1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Employment Div. v. Smith, , 494 U.S. 872 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Imbler v. Pachtman, 424 U.S. 409 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Lebron v. National Railroad Passenger Corporation, 513 U.S. 374, 379 (1995) . . . . 17

Perez v. Ledesma, 401 U.S. 82, 85 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L.Ed.2d 669 (1971) . . . . . . . . . . . . . . 17

UNITED STATES CONSTITUTION

First Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9, 17, 22

Fifth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 9 ,17

Fourteenth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9, 17

UNITED STATES STATUTES

18 U.S.C. 242 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

28 U.S.C. 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

42 U.S.C. 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17

42 U.S.C. 1996 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

42 U.S.C. 11701 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

HAWAII STATUTES

Hawaii Revised Statutes

Section 91-3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3

Section 711-1107 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 21
Section 195 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

RULES

HAR 13-209-6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21

Lanny Alan Sinkin

Tx. Bar #18438675
P. O. Box 944
Hilo, Hawaii 96721
(808) 936-4428
lanny.sinkin@gmail.com
Counsel for Plaintiff

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII






)
Frank Kamealoha Anuumealani Nobriga, )
Civ. No. 15-cv-00254 DKW BMK






)


Plaintiff


)
PLAINTIFFS OPPOSITION TO







)
COUNTY DEFENDANTS ROTH,






)
NAGATA, AND BAILEY MOTION



Vs.


)
TO DISMISS; EXHIBITS 1 14;






)
CERTIFICATE OF SERVICE






)

David Y. Ige, et al.,


)
OCTOBER 16, 2015







TIME: 9:30 A.M.


Defendants

)
JUDGE DERRICK K. WATSON
_________________________________________________)

PLAINTIFF NOBRIGAS MEMORANDUM IN OPPOSITION TO DEFENDANTS MITCH
ROTH, IN HIS CAPACITY AS HAWAII COUNTY PROSECUTING ATTORNEY, DARIEN
NAGATA, IN HER CAPACITY AS HAWAII COUNTY DEPUTY PROSECUTING
ATTORNEY AND ELIZABETH BRITT BAILEY, IN HER CAPACITY AS HAWAII
COUNTRY DEPUTY PROSECUTING ATTORNEYS MOTION TO DISMISS [17]
AMENDED COMPLAINT, FILED JULY 24, 2015; MEMORANDUM IN SUPPORT OF
MOTION, DECLARATION OF ELIZABETH BAILEY; EXHIBITS 1 57;
CERTIFICATE OF SERVICE

I. Introduction

Defendants Roth, Nagata, and Bailey filed their Motion to Dismiss Amended

Complaint, filed July 24, 2015 (Hereinafter County Mem.).

Plaintiff Nobriga herein presents his opposition to said motion.

While based on different facts to some extent, the County defendants motion

raises some issues similar to the motion to dismiss filed by Defendants Nagata and
Straney. Plaintiff incorporates herein the opposition Plaintiff filed to that motion

and to the Joinder by the State defendants.

II. Argument

In the Introduction to their motion to dismiss, the County defendants contest

various factual allegations found in the Amended Complaint. While resolution of

such contested issues would normally await trial, Plaintiff herein provides an initial
response.

A. The Declaration of an Emergency was Pretextual.

County defendants note that Plaintiff alleges that the emergency declared as

a basis for adopting the rules in question was based on pretexts. County Mem. at 3.
The defendants then proceed to argue that [o]n their face, the emergency DLNR
Rules state the necessary findings. Ibid. at 4, citing Exhibit 2.

To the contrary, the only finding appearing in Exhibit 2 is:

The Department of Land and Natural Resources finds that the immediate
adoption of this emergency rules amendment upon less than thirty days
notice of hearing is necessary to prevent an immanent peril to public safety
and the states natural resources related to the presence of persons in the
portions of public hunting areas, Units A and K, Mauna Kea, Hawaii, referred
to as the Restricted Area, between the hours of 10:00 p.m. and 4:00 a.m.

The Amended Complaint alleges a failure of the notice of emergency to

specify any of the purposes for which an emergency is legitimately declared.

Amend. Compl. 142-150; HRS 91-3(b).

The defendants response is that there is a nebulous threat related to the

presence of persons in two public hunting areas in the middle of the night. There is
no specificity as to what actions of such persons create the immanent peril nor why
those actions need to be regulated only in the two specified hunting areas.

The lack of specificity is attributable to the reluctance of the DLNR to

2

acknowledge that the rules are designed to prevent those conducting the 24 hour
vigil to protect the Mauna from desecration from continuing to stay in the vigil tent
over night and to adopt rules that will limit access of the Protectors to the access
road, not the hunting areas. Even the very finding cited only confirms that the
defendants are pursuing a conspiracy to suppress opposition to the TMT.

The initiation of emergency proceedings based on pretextual rationales

violates the Fifth Amendment due process rights of those potentially affected by the
rules. An emergency process allows the agency to act within a shortened time frame
to give notice and provide for a hearing. HRS 91-3(b).

This limitation on the ability of interested persons to participate in the

decision making process regarding whether the rules should be adopted requires
the finding justifying the emergency be legitimate and specific enough to meet the
requirements of the statute.

In this case, as argued above, the reasons were pretexts and the only reason

in the official notice is inadequate to meet the statutory test.

B. Those being Charged and Prosecuted Lack Criminal Intent.

Defendants contest the allegation that those being arrested and prosecuted

lack the necessary criminal intent. County Mem. at 4.

Defendants argue that those arrested while protecting the Mauna have

demonstrated the necessary criminal intent for the County to pursue criminal
charges and prosecutions. County Mem. at 4 5.

To argue that those blocking the construction of the TMT are criminals, the

defendants have to deny the validity and sincerity of the assertion of sacredness

concerning the Mauna and, thus, the legitimacy of the faith being practiced.

If the belief that the Mauna is sacred is sincere and accepted as such, then the

objection to the construction of the TMT as desecration of a sacred site is also

sincere.

(1) A person commits the offense of desecration if the person intentionally

desecrates:

(a) Any public monument or structure; or

(b) A place of worship or burial; or

(c) In a public place the national flag or any other object of


veneration by a substantial segment of the public.
(2) "Desecrate" means defacing, damaging, polluting, or otherwise
physically mistreating in a way that the defendant knows will
outrage the sensibilities of persons likely to observe or discover
the defendant's action.
(3) Any person convicted of committing the offense of desecration shall be
sentenced to a term of imprisonment of not more than one year, a fine of not
more than $10,000, or both.

HRS 711-1107 (emphasis added).

Plaintiff alleges that the Mauna is a place of worship and burial. Amend.

Compl. 33 41. Plaintiff alleges that the Mauna is a public place venerated by a
substantial segment of the public. Ibid. 56. The hundreds of people involved in
blocking the TMT construction crew from reaching the construction site
demonstrate the widespread support for protecting the site. Ibid. 88 97. All of
the arrests documented in the defendants motion are testimony to the level of
outrage being experienced by those aware of the TMT plans. County Mem. , Exhibits
3 57.

The criteria for charging desecration are present. Instead, the County

defendants choose to prosecute those whose outrage reaches the level of being

willing to be falsely arrested and prosecuted to pursue protection of the sacred site.

If those opposing the construction of TMT to protect the sacred Mauna do so

because they sincerely believe that they have a spiritual obligation to do so, then
their actions are the very opposite of criminal.

Given that State law enforcement, including DLNR, the Attorney General, and

the County Prosecutor are all aiding and abetting the TMT construction and
cooperating in prosecuting the Protectors, see Exhibit 1, and that the Kingdom is not
yet able to issue enforceable orders to prevent the desecration, see Exhibits 2 4,
those who physically obstruct the TMT construction are filling a void in law
enforcement, not committing a crime.

Criminalizing those demonstrating the strongest adherence to the traditional

faith of the Hawaiian people continues the State policy of suppressing the traditional
faith. That the Prosecutor has a reasonable expectation that she would be able to
obtain a valid conviction at trial, County Mem., Declaration of Elizabeth Bailey at
5, simply confirms that policy.

C. Hawaiians are being Prosecuted because they are Reasserting Their
Identity.


County defendants contest the allegation that law enforcement is targeting
Hawaiians insisting on their faith and their nationality. County Mem. at 5.

Perhaps the allegation could be better framed as the County defendants

refuse to recognize what is happening on the Mauna. In asserting the sacredness of

the Mauna, in acting to protect the water supply created when the snow falls on the
Mauna, and in fundamentally reasserting the link between the people and the
Mauna, the Hawaiians are reclaiming their identity and the nationality.

To pretend that the Prosecutors are just enforcing the laws on trespass,

obstruction, or whatever is to ignore the motivations of those they are persecuting

and prosecuting.

D. Injunctive relief is Appropriate.

The defendants contest the argument that injunctive relief is appropriate to

prevent irreparable harm.

Accepting the allegations in the Amended Complaint as true, the County

Prosecutors are part of a conspiracy that involves State officials and law
enforcement, the purpose of which is to unconstitutionally deny the Protectors the
ability to challenge the construction of the TMT. The agreement of the Prosecutors
to participate in the conspiracy was a key element in the decision to pursue the
conspiracy.
Later that month, Redulla wrote that the Deputy Attorney General William
Wynhoff had informed him that he believed the Land Board had the authority
to close the state-owned portion of the roadway in the interests of public
safety and health. However, he warned that the Hawaii County prosecutors
office would have to be willing to accepts arrests that are made under the
authority of such a closure.

Exhibit 5 at 2.

As acknowledged by the County defendants, the prosecutors are continuing

to pursue prosecution of those opposing the conspiracy. Injunctive relief can put an
end to this abuse of process.

E. Injury to Plaintiff is Real.

County defendants argue that Plaintiff has suffered no injury and is not likely

to suffer any injury in the future. County Mem. at 8 12.

As argued above, Plaintiff did suffer a due process injury, if the declaration of

an emergency was pretextual and otherwise failed to satisfy the requirements for
such an expedited process as alleged by Plaintiff. Amend. Compl. 138-150.

The rules state:

13-123-21. 2 Prohibited activities.

(a) The area referred to in this Rule as the restricted area is defined as any
lands in the public hunting area that includes the Mauna Kea Observatory
Access Road and one mile on either side of the Mauna Kea Observatory
Access road.

(b) As used in this Rule, the term transiting means operating, or being a
passenger in, a motor vehicle travelling at a reasonable and prudent speed
and having regard to the actual and potential hazards and conditions then
existing.

(c) No person shall at any time possess or control in the restricted area any
of the following items: sleeping bag, tent, camping stove, or propane burner.
3
(d) No person shall enter or remain in the restricted area during the hours of
10:00 p.m. to 4:00 a.m., unless the person is transiting through the restricted
area on the Mauna Kea Observatory Access Road or is lawfully within or
entering or exiting an existing observatory or a facility operated by the
University of Hawaii.

Having failed to define the emergency with any specificity, the DLNR has not

provided any means of judging the appropriateness of the rules adopted to

supposedly respond to the emergency. For example, how did the agency choose the
two-mile wide corridor? Ibid. section (a). Why are certain people, e.g. astronomers,
allowed unrestricted access to the road during the specified hours? Ibid. section (d).
The arbitrary and capricious nature of the rules violated the requirements of due
process for those affected by the rules. Plaintiff is barred from using the road while
astronomers are not.

The enforcement of the rules is equally arbitrary and capricious.

The only arrests to date pursuant to the rules involved the arrest of those

conducting the 24 hour vigil. See County Mem., Declaration of Elizabeth Bailey 10.

The Mauna Kea Forest Reserve is part of the State forest reserve system.

http://dlnr.hawaii.gov/forestry/frs/reserves/hawaii-island/
Under the Forestry Reserve regulations, anyone can receive a permit to camp.

http://dlnr.hawaii.gov/forestry/frs/permitting/


Under the new Game Mammal Hunting rules, the prohibition on having a
tent, sleeping bag, cook stove, or propane burner applies without exception.

So anyone who secures a permit to camp under the Forestry Reserve rules

and brings camping equipment in the area will be in violation of the Game Mammal
Hunting regulations.

Tourists have no way of knowing about the prohibitions until they encounter

the sign posted just below the Visitor Center. Exhibit 6. There is no procedure
offered for tourists who have any of the prohibited equipment to either turn in the
equipment or otherwise come into compliance with the prohibition. Actually, there
is no reason to expect that the rule on possession of prohibited items would ever be
enforced against such tourists.

The bottom line is that the rules have and will in fact impact only those

opposing the TMT and protecting the Mauna. This discriminatory impact violates
the Fourteenth Amendment Equal Protection Clause.

Among those opposing the TMT and protecting the Mauna are the

practitioners of the traditional Hawaiian faith. The Amended Complaint alleges that

the rules have an adverse impact on the exercise of the traditional faith. Amend.
Compl. 162. The Amended Complaint also alleges that the BLNR failed to consult
with the Kahu K Mauna, which is supposed to provide guidance on the potential
impacts of rules and regulations on spiritual practices on the Mauna. Amend.
Compl. 157; http://www.malamamaunakea.org/management/kahu-ku-mauna.

Plaintiff is the Kahuna of the Temple of Lono. That means that the previous

Kahuna passed the responsibility for this position to the Plaintiff. As such he is a
repository of the teachings and practices of the traditional Hawaiian faith. Exhibit 7
at 1-8.

Rather than subject himself to arrest by physically challenging the rules,

Plaintiff came to this Honorable Court for relief.

There is no legal requirement for Plaintiff to have first pursued such a

challenge. Courts have long recognized the [o]ne does not have to await the
consummation of threatened injury to obtain preventive relief. Cal. Pro-Life Council
v. Getman, 328 F.3d 1088, 1094 (9th Cir. 2003) (citation omitted).

In addition to the Fifth Amendment and Fourteenth Amendment violations

noted above, Plaintiff is alleging a First Amendment injury. The rules for standing in
such cases are less stringent and strongly favor standing. Ariz. Right to Life Political
Action Committee v. Bayless, 320 F3d. 1002, 1006 (9th Cir. 2003).

As far as injury to the Plaintiff beyond the obvious injury of having the

government issuing rules that restrict the practice of his faith, the DLNR rules are
part of a long-standing pattern of official suppression of the traditional Hawaiian

faith. In seeking relief from the rules, the Plaintiff is also seeking an end to the
official suppression of his faith.

Kamehameha I was the last monarch of Hawaii to integrate the traditional

Hawaiian faith into the overall governance of the Hawaiian civilization.1 He

established the Kingdom of Hawaii Government at Ahuena2 inside the boundaries
of the Puuhonua Hale O Keawe, the spiritual land base of the traditional faith.3 The
Puuhonua as the spiritual land base of the Hawaiian people is characteristically the
same as the spiritual land bases of other faiths, e.g. the Temple of Solomon or the
Dome of the Rock.

The United States Park Service refers to the Puuhonua as the City of

Refuge. When someone in trouble with the high chief ran to the Puuhonua before
being caught by the Kings guards, that person was safe.
http://www.nps.gov/puho/planyourvisit/the-puuhonua.htm

That function of the puuhonua was only one aspect of the institution.

The primary function was as a garden charged with feeding the people. The

Puuhonua served as the back up for the entire island civilization, e.g. when a flood

1 The history of the faith herein is provided by the Plaintiff. Exhibit 7 at 10.
2 King Kamehameha I established an altar dedicated to Lono at Ahuena. Today,
Ahuena is operated as a tourist attraction by a non-profit organization.

3 The United States National Park Service identifies the Puuhonua as Puuhonua O
Honaunau. Honaunau is a district in which part of the Puuhonua was located.
Relegating the Puuhonua to that district falsifies the true history by diminishing the
extent of the Puuhonua. The boundaries of the Puuhonua encompassed the lands
from the Temple of Ku at Honokahau Harbor to Kealakekua Bay.

10

took the fruit trees in an ahupuaa4, the people of that district would come to the
Puuhonua for replacement trees. The Puuhonua was also the site of academies that
taught skills, such as canoe making, net making, etc. This rich and unique institution
is reduced by the United States National Park Service to simply a sanctuary for law
breakers. The Puuhonua is also operated as a tourist attraction.

Kamehameha I served as a champion and protector for the traditional faith.

He did not permit missionaries of the Christian faith to come to Hawaii.

After his death in 18195, his successors permitted the missionaries to come

to Hawaii.

When the missionaries converted the Hawaiian leadership to Christianity,

they also taught them that the practitioners of the traditional Hawaiian faith were
agents of the Devil.

In 1824, Kaahumanu, a wife of Kamehameha, proclaimed a new code of laws

known as the Moe Kolohe Laws. Inspired by the missionary teachings, these laws
forbid ancestor worship and other critical aspects of the traditional faith. People
violating the prohibitions could be sent to prison and otherwise persecuted.6

The division caused by the missionary teaching within the Hawaiian

community manifested in armed conflict between protectors of the traditional faith

and the new Christian Hawaiians. Traditional temples and religious icons were
destroyed.

4 The ahupuaa was a land division generally encompassing a land area from the top
of the mountain to the ocean. The high chief assigned particular families to steward
such a division. The Puuhonua was a special area set aside from the ahupuaa
system.
5 There is controversy as to the precise year in which he died.
6 These laws have never been rescinded.

11

Eventually, the Christian Hawaiians won and the Kahunas of the traditional

faith went underground to avoid further persecution.

In 1978, the United States Congress passed the American Indian Religious

Freedom Act, (AIRFA), Public Law No 95-341 (Joint Resolution), 92 Stat. 469
(August 11, 1978), 42 U.S.C. 1996. The purpose of the law was to protect and
preserve the traditional religious rights and cultural practices of indigenous people,
including Native Hawaiians. One of the rights supposedly protected was access to
sacred sites.

That henceforth it shall be the policy of the United States to protect and
preserve for American Indians their inherent right of freedom to believe,
express, and exercise the traditional religions of the American Indian,
Eskimo, Aleut, and Native Hawaiians, including but not limited to access to
sites, use and possession of sacred objects, and the freedom to worship
through ceremonials and traditional rites.7

Based on the promise of this law, Sam Lono,8 Kahuna of the Temple of Lono,

emerged publicly to restore the sacred seat of the Temple at Puuhonua Lehua at
Kualoa. He brought back the taro fields, planted numerous other crops and trees,
built walkways throughout the puuhonua, and built the Ma Pele at Kualoa
reconnecting the site to the spiritual practice of Moe Uhane (communicating with
the ancestors).

7 Congress had no problem using the term traditional religions without placing that
term in quotation marks. See also 42 U.S.C. 11701(2) (The Native Hawaiian people
are determined to preserve, develop, and transmit to future generations their
ancestral territory, and their cultural identity in accordance with their own spiritual
and traditional beliefs, customs, practices, language, and social institutions.)

8 Kahuna Nu Pali Ku Samuel Hoopii O Kalani Lono o Ka Makahiki Po Paki

12

After the puuhonua was fully developed, the State of Hawaii entered with

bulldozers, destroyed everything that Sam Lono had planted and built, and arrested
the Kahuna for camping without a permit.9

Sam Lono spent years in United States courts attempting to vindicate his

right to practice his faith.

In the end, the State levied a $5.00 fine against the Tahuna for camping

without a permit.

Despite facing official repression, Sam Lono continued his work to restore

the right of the traditional faith to practice.

He came to the Island of Hawaii to consecrate Puuhonua O Honaunau. This

puuhonua was the youngest puuhonua. The purpose of his visit included
reestablishing the connection between the puuhonua and Mauna a Wkea. In the
nomenclature of the Temple teachings, the Mountain is the triangle that stands for
the ancestors.

Throughout this period of time, Plaintiff was haumana (student) of Sam Lono.

He learned the history of missionary suppression of his faith and watched the
official suppression of his faith continuing under the State of Hawaii.

When Sam Lono passed away, he passed the responsibility to Plaintiff to

serve as the Kahuna of the Temple.

In that position, Plaintiff conducted a very specific spiritual ceremony asking

the Gods to intervene and prevent the building of the Keck Observatory outriggers.

9 At that time, camping without a permit was not an offense for which one could be
arrested.

13

The additional telescopes violated the sacredness of the

Mountain/Triangle/Ancestors. Amend. Compl. 33-43.

More recently, Plaintiff participated with the King in an effort to return to

Puuhonua O Honaunau to engage in Moe Uhane. The Puuhonua is the site of a

Temple of Lono altar present from the time the puuhonua was established. The site
is now part of a National Park under the United States National Park Service. The
site is operated as a tourist attraction.

Moe Uhane takes place over an indeterminate period of time. When the King

notified the National Park Service of his intention, the Park Service attempted to
place restrictions on how long the King could remain and ended up essentially
threatening to arrest him, if he overstayed the period that the National Park Service
would allow. Exhibits 8 13.

Plaintiff and the King decided to wait until a later day for the visit when they

will be prepared to be arrested, if necessary, to ensure the right to practice the

traditional faith.

Against this background, the restrictions placed on spiritual practice by the

BLNR, either through ignorance or deliberately, simply continue the illegal and
unconstitutional official practice of suppressing attempts to practice the traditional
faith of the Hawaiian people.

As shown in the Declaration of Declaration of Frank Kamealoha Anuumealani

Nobriga, Kahuna of the Temple of Lono, Exhibit 2 and Exhibits A through C thereto,
the traditional faith practice is alive and well.

14

Because the traditional faith is still practiced, the State is required to

demonstrate some compelling purpose for placing such a heavy burden on the
practice of the traditional faith as are found in the restrictions at issue. Amend.
Compl. 114-122. See e.g. Employment Div. v. Smith, , 494 U.S. 872, 878-82
(1990); Burwell v. Hobby Lobby Stores, 134 S. Ct. 2751, 2760-61 (2014).

The purpose articulated in the finding of an emergency to prevent an

immanent peril to public safety and the states natural resources related to the
presence of persons in the portions of public hunting areas, Units A and K, Mauna
Kea, Hawaii, referred to as the Restricted Area, between the hours of 10:00 p.m.
and 4:00 a.m. is too vague and abstract to support an argument of compelling
purpose.

Again, the simple truth is that the BLNR adopted the new rules in order to

drive the Protectors off the Mauna and prevent another successful blockade of the
TMT construction crew. The flaws in the adoption process and in the rules
themselves are a product of that impermissible purpose.

F. Plaintiffs Amended Complaint Satisfies the Pleading Requirements
to Establish Jurisdiction for this Honorable Court.


Plaintiffs Amended Complaint alleged violations of 18 U.S.C. 242. Amend.
Compl. 3. In support of that allegation, Plaintiff alleged that the Defendants
intended to use armed law enforcement personnel to enforce their unconstitutional
and illegal rules only on persons targeted for their political and/or spiritual beliefs.
Amend. Compl. 1, 11, 12, 131.10

10 Plaintiffs Counsel also serves as the Chief Advocate (Alii Manao Nui) of the
Kingdom of Hawaii by appointment of Alii Nui Mi (High Chief/King) Edmund

15

As observed by the County defendants, the proper vehicle to assert claims

for relief to enforce federal rights, including federal Constitutional rights is via 42
U.S.C. 1983. County Mem. at 14, citation omitted.

The Amended Complaint satisfies the pleading requirements for a case

brought pursuant to 42 U.S.C. 1983.

Treating the case as brought pursuant to 1983 confers jurisdiction on this

Honorable Court pursuant to 28 U.S.C. 1331.11

Kelii Silva, Jr. Were the Kingdom in a position to enforce its rulings against the
Defendants in this case, the Chief Advocate would have initiated criminal
proceedings in the Kingdom.

The responsible law enforcement personnel within the County of Hawaii and
the State of Hawaii are joined in the conspiracy alleged by Plaintiff and not available
to enforce the laws being broken by the conspiracy.

The Attorney General of the United States is on notice of what is happening
around the sacred Mauna and has taken no action. See e.g. Exhibit 2.

The Kings even suggesting that he might deploy Kingdom Marshals to stop
arrests of those seeking to enforce the law by preventing desecration of the sacred
Mauna created a controversy. http://www.hawaiitribune-herald.com/news/local-
news/king-hawaii-threatens-send-armed-marshals-aid-telescope-protesters

This Honorable Court is the remaining institution capable of effectively
addressing Plaintiffs complaints.

11

Should the Court become convinced at some point that the Kingdom still exists
and treaties signed between the Kingdom and the United States are still valid,
jurisdiction may be found in the United States Treaty with the Hawaiian Islands,
December 20, 1849. Article XI of that treaty states:
It is agreed that perfect and entire liberty of conscience shall be enjoyed by
the citizens and subjects of both the contracting parties, in the countries of
the one of the other, without their being liable to be disturbed or molested on
account of their religious belief.
To the extent the United States asserts jurisdiction over the lands of Mauna a Wkea
and those opposing the TMT for spiritual reasons are subjects of the Kingdom, the
harassment, arrests, prosecutions, etc. by the United States would violate that
treaty.

16

Treating this case as brought pursuant to 42 U.S.C. 1983 does not make a

new claim. Lebron v. National Railroad Passenger Corporation, 513 U.S. 374, 379
(1995).
Throughout the Amended Complaint, Plaintiff consistently asserted
violations of his First, Fifth, and Fourteenth Amendment rights related to the free
exercise of his faith. Citizens United v. Federal Election Commission, 558 U.S. 310
(2010) Slip at 14. (Rather, it isat mosta new argument to support what has

been [a] consistent claim: that [the FEC] did not accord [Citizens United] the
rights it was obliged to provide by the First Amendment.)

G. This Case is that Unique Case Favoring an Exception to the Younger
Abstention.


County defendants argue that this Honorable Court should not interfere with
State criminal proceedings and should dismiss the County Prosecutors as
defendants citing Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L.Ed.2d 669 (1971).

The Younger Abstention Doctrine is almost always followed and the

exceptions are almost never implemented. Plaintiff argues that this case may
qualify as that unique case where the abstention is inappropriate.

If Plaintiffs allegations are taken as true, there is an ongoing conspiracy on

the part of State officials to suppress a political and spiritual movement. In that
allegation, the County Prosecutors play a critical role, using their powers of
prosecution in an attempt to intimidate the movement.

This case is not about an individual prosecution. Dozens of people have been

arrested to date and funneled into prosecution by the County defendants.

17

In determining whether a prosecutor is immune from suit, the first principle

is that immunity does not apply unless the action challenged is an advocative
function. The distinction is between those aspects of the prosecutors
responsibility that cast him in the role of an administrator or investigative officer
rather than an advocate. Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976).
Illustrative of the difference is Burns v. Reed, 500 U.S. 478 (1991) in which the
prosecutors were absolutely immune from actions related to presentation of
evidence to a grand jury and not immune from liability for advice given to police
officers that led to rights violations. When the prosecutor erroneously told the
police that hypnotizing a witness was constitutional, the prosecutor was not
engaged in advocative conduct. Ibid. at 492-96.

The Hawaii Tribune-Herald documented a series of communications

between various County and State officials discussing how to prevent the Protectors
of the Mountain from continuing to protect the sacred site. Exhibits 1, 5.

Conversations involving the Hawaii County Police and TMT began in May on

how to close the road in order to prevent people from blocking the TMT
construction crews desecration of a sacred site. Exhibit 5 at 2. The proposal being
considered was to close the Mauna Kea road at the Daniel K. Inouye Highway. Id.

The County Prosecutor played a key role in the implementation of the plan to

suppress the opposition to TMT.

Deputy Attorney General Chow wrote to Attorney General Chin and outlined
a proposal that Deputy Attorney General Wynhoff described in a later email
as potentially a real home run.

Chow met with DLNR Division of Forestry and Wildlife personnel and
picked their brains about our dilemma of the Mauna Kea road.

18

Scott Fretz of the Division of Forestry and Wildlife (DFW) said that we might
be able to temporarily close or restrict access to the road under the Game
Mammal Hunting Rules, Title 13, Chapter 123, which regulate game mammal
hunting.

Id.

Deputy Attorney General Chow was trying solve the dilemma of how to

close the road to the Protectors of the Mountain without appearing to target them in
violation of their constitutional and civil rights. Id.

The acting administrator of the DFW suggested that they use the Game

Mammal Hunting rules to close the road. Id.

Deputy Attorney General Wynhoff said that before pursuing that option, they

should know whether the County Prosecuting Attorney would accept cases for
prosecution that were based on the Game Mammal Hunting Rules especially
adopted to close the Mauna Kea road to the Protectors. Id.
Later that month, [Deputy Enforcement Chief of DLNRs Division of
Conservation and Resource Enforcement Jason] Redulla wrote that Deputy
Attorney General William Wynhoff had informed him that he believed the
Land Board has the authority to close the state-owned portion of the
roadway in the interests of public safety and health. However, he warned
that the Hawaii County prosecutors office would have to be willing to accept
arrests that are made under the authority of such a closure.

Id.

Redulla asked DLNR branch chief Lino Kamakau to contact the Hawaii
County Prosecutors Office and brief them on this information. Redulla
asked Kamakau to [p]lease ask them whether they would be willing to
accept cases and charge people who are arrested if such a road closure would
take place.
While the article is silent on whether the County Prosecuting Attorney

agreed to prosecute violations of a road closure rule adopted under the Game
Mammal hunting rules, DLNR enforcement did proceed to make arrests pursuant to

19

the new law and the Prosecutor did in fact accept such charges when people were
arrested for violating the new rule. County Mem., Declaration of Elizabeth Bailey
10.

Implicit in these arrests, citations, and prosecutions is that the County

Prosecuting attorney did advise the Hawaii County Police and the DLNR Division of
Conservation and Resource Enforcement that arrests made pursuant to the new
rules would be legal, constitutional, and subject to prosecution. That advice was not
advocative conduct and, therefore, not immune.

Unconstitutional and illegal arrests and citations followed from the County

Prosecuting Attorneys apparent advice to law enforcement officers regarding use of

the Game Mammal Hunting rules to make such arrests. Under such circumstances,
the normal prosecutorial immunity does not apply.

Furthermore, the rules adopted by the Board of Land and Natural Resources

were facially defective, which should have caused the County Prosecutor to step
back from implementing the plan.

For example, Section 13-123-21. 2(c) is facially defective because it seeks to

outlaw actions that are totally legal. There is no statutory basis for making
possession of a sleeping bag, tent, camping stove, or propane burner a crime. There
is no requirement in the rule that enforcement action be based on some act in
violation of the rule, other than simple possession of an otherwise legal object. The
prohibition on possession of the identified items does not require that the items
actually be used for a prohibited purpose; this prohibition, therefore, operates

20

independently from the prohibition on camping and criminalizes simple possession

of a legal object. Compare HAR 13-209-6 with HRS 195D-8. 12

Because the prohibitions in Section 13-123-21. 2(c) are obviously defective,

prosecutions pursuant to that section fall within one of the exceptions to the
Younger Abstention Doctrine prosecution is taking place in bad faith because the
Prosecutor knows that no crime has been committed, i.e. the person charged is
innocent. Dombrowski v. Pfister, 380 U.S. 479 (1965).

Also, the Prosecutor was well aware that the motivation for the Protectors

was their connection to the Mountain as a sacred site and their spiritual obligation
to prevent desecration of that site. In particular, the Protectors sought to enforce a
state law preventing desecration, HRS 711-1107, in a situation where State law
enforcement was facilitating the crime. The Protectors clearly lacked the required
criminal intent to be prosecuted and their actions fell within the necessity defense.

12 13-209-6
Any person violating any of the provisions of these rules shall be penalized as
provided in section 195-8, Hawaii Revised Statutes.
195D-8 Search and seizure. Any officer or agent authorized pursuant to section
195D-7 shall have the authority to conduct searches as provided by law and to seize
any equipment, business records, merchandise, aquatic life, wildlife, or land plant
taken, possessed, transported, sold, offered for sale, or used in violation of any
section of this chapter or any rule adopted hereunder, and any of the foregoing so
seized shall be held by the department pending disposition of court proceedings, or
the department prior to forfeiture, may direct the transfer of aquatic life, wildlife, or
land plants so seized to a qualified ichthyological, zoological, botanical, educational,
or scientific institution for safekeeping, costs thereof to be paid by the defendant.
Upon conviction of the person or persons from whom the seizure was made, the
court shall declare the items seized forfeited to the State. Such items shall be
destroyed or disposed of in any manner as the department may deem appropriate.
[L 1975, c 65, pt of 1; am L 1983, c 111, 9] (emphasis added).

21

Again, the Prosecutors pursued prosecution of people they knew to be

innocent in the eyes of the law.

Finally, the Amended Complaint alleges that State and County officials

conspired to suppress the constitutional and statutory rights of those seeking to

prevent desecration of the sacred site. Part of the conspiracy was to adopt new
rules that would have the effect of driving the Protectors off the Mountain while
hiding that intent.

The Prosecutor agreeing to prosecute those arrested pursuant to the new

rules was a critical part of the plan. Had the Prosecutor refused to prosecute, the
new rules would not have been adopted.

Agreeing to prosecute pursuant to the new rules was only one act by the

prosecutor in furtherance of the conspiracy alleged.

Earlier the Prosecutor had brought trespass charges against Protectors. The

legitimacy of those charges was a matter of discussion between the Prosecutors

office and the attorney for TMT. Exhibit 1.

Subsequently, Defendant Bailey determined that the video evidence did not

show that the individuals arrested and charged with Criminal Trespass in the
Second Degree were inside TMTs marked property line. County Mem., Declaration
of Elizabeth Bailey at 7.

Despite determining that those charged were innocent, Defendant Bailey

sought dismissal of the charges without prejudice, leaving open the possibility of re-
filing the charges. That decision left a potential prosecution hanging over the heads
of those charged as a means of chilling their First Amendment rights. The dismissal

22

without prejudice was in bad faith and constituted harassment of those deceived
into believing that they were still facing prosecution.
Only in cases of proven harassment or prosecutions undertaken by state
officials in bad faith without hope of obtaining a valid conviction and perhaps
in other extraordinary circumstances where irreparable injury can be shown
is federal injunctive relief against pending state prosecutions appropriate.

Perez v. Ledesma, 401 U.S. 82, 85 (1971).


Another Younger exception is when the law being enforced is patently
unconstitutional. In this case, it is a rule, not a law, being enforced. That rule makes
it illegal to possess objects that are otherwise legal.

The BLNR is not a legislative body. As an executive branch body, the BLNR

lacks the constitutional authority to enact rules that create new law, particularly
rules that create new crimes.

Overall, the impact of the rules is to infringe on the right to free exercise of

religion; the rights of free speech, assembly, and petitioning for redress of
grievances; and the constitutionally and statutorily protected rights of native
Hawaiians. The phony assertion of emergency does not provide the compelling
government interest required to infringe on these rights.13

Given all of these circumstances, there is a reasonable case to be made that

the Prosecutor does not have immunity in this case and that the Younger Abstention
Doctrine does not apply.

13 The harms alleged will be shown to be pretexts for enacting rules developed
before many of the supposed harms even occurred. For many of the harms alleged,
there is no evidence that the Protectors were responsible. To the contrary, there is
evidence that the Office of Mauna Kea Management Rangers requested assistance
from the Protectors to address situations that the Protectors then resolved
peacefully.

23

III. Conclusion

The need for the DLNR rules did not emerge organically from policy

concerns. The new rules are artificially grafted onto existing rules specifically to
prevent the Protectors from effectively preventing desecration. While masked as
rules of general applicability, the rules in fact are targeted on the Protectors.

Based on the above and foregoing, the County defendants motion to dismiss

should be denied in all respects.

Respectfully submitted,

Dated: September 25, 2015

/s/ Lanny Alan Sinkin

Lanny Alan Sinkin
Counsel for Plaintiff

24