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Klein Law Group Lllc Robert G. Klein #1192-0 Kurt W. Klein

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Klein Law Group Lllc Robert G. Klein #1192-0 Kurt W. Klein KLEIN LAW GROUP LLLC ROBERT G. KLEIN #1192-0 Electronically Filed KURT W. KLEIN #10357-0 FIRST CIRCUIT DAVID A. ROBYAK #10321-0 1CC171001823 Waterfront Plaza #3-480 02-MAR-2020 500 Ala Moana Blvd. 03:23 PM Honolulu, Hawai‘i 96813 Telephone: (808) 591-8822 Facsimile: (808) 427-9761 Email: [email protected] [email protected] [email protected] Attorneys for Plaintiff THE OFFICE OF HAWAIIAN AFFAIRS IN THE CIRCUIT COURT OF THE FIRST CIRCUIT STATE OF HAWAI‘I THE OFFICE OF HAWAIIAN AFFAIRS, ) CIVIL NO. 17-1-1823-11 (JPC) ) (Declaratory Judgment) Plaintiff, ) ) PLAINTIFF THE OFFICE OF HAWAIIAN vs. ) AFFAIRS’ MOTION FOR SUMMARY ) JUDGMENT; MEMORANDUM IN STATE OF HAWAI‘I; UNIVERSITY OF ) SUPPORT OF MOTION; DECLARATION HAWAI‘I; DEPARTMENT OF LAND ) OF ROBERT G. KLEIN; EXHIBITS “A” – AND NATURAL RESOURCES; BOARD ) “K”; NOTICE OF HEARING MOTION OF LAND AND NATURAL RESOURCES; ) AND CERTIFICATE OF SERVICE JOHN DOES 1-10; JANE DOES 1-10; DOE ) PARTNERSHIPS 1-10; DOE ) HEARING: CORPORATIONS 1-10; and DOE ) Date: Tuesday, March 31, 2020 GOVERNMENTAL ENTITIES 1-10, ) Time: 10:00 a.m. ) Judge: Honorable Jeffrey P. Crabtree Defendants. ) ) [No trial date set] PLAINTIFF THE OFFICE OF HAWAIIAN AFFAIRS’ MOTION FOR SUMMARY JUDGMENT Plaintiff THE OFFICE OF HAWAIIAN AFFAIRS (“Plaintiff”), by and through its attorneys, Klein Law Group, LLLC, hereby moves this Court for summary judgment on Count I of its Complaint for Declaratory and Injunctive Relief, Accounting, Restitution, and Damages, filed on November 7, 2017, against Defendants STATE OF HAWAI‘I, UNIVERSITY OF HAWAI‘I, DEPARTMENT OF LAND AND NATURAL RESOURCES, SUZANNE CASE,1 in her capacity as Chairperson of the DEPARTMENT OF LAND AND NATURAL RESOURCES, and BOARD OF LAND AND NATURAL RESOURCES (collectively, “Defendants”) and respectfully requests that the Court (a) declare that Defendants breached and continue to breach their fiduciary duties by failing to properly manage the ceded lands on Mauna Kea, (b) issue an injunction requiring Defendants to fulfill their trust duties with respect to the ceded lands on Mauna Kea and precluding actions that violate their trust duties, (c) order an accounting of the ceded lands on Mauna Kea and the cost of managing those lands in compliance with Defendants’ fiduciary duties, and (d) pay restitution to make the trust whole. This motion is brought pursuant to Rules 7 and 56 of the Hawai‘i Rules of Civil Procedure and is supported by the memorandum, declaration of counsel, and exhibits attached hereto, along with the records and files herein, and any additional argument of counsel at the hearing. DATED: Honolulu, Hawai‘i, March 2, 2020. /s/ Robert G. Klein ROBERT G. KLEIN KURT W. KLEIN DAVID A. ROBYAK Attorneys for Plaintiff THE OFFICE OF HAWAIIAN AFFAIRS 1 Defendant SUZANNE CASE, in her capacity as Chairperson of the DEPARTMENT OF LAND AND NATURAL RESOURCES, was inadvertently left off the case caption when the Complaint herein was filed, but Ms. Case is duly listed in the text of the Complaint as a defendant. Complaint ⁋ 9. -2- IN THE CIRCUIT COURT OF THE FIRST CIRCUIT STATE OF HAWAI‘I THE OFFICE OF HAWAIIAN AFFAIRS, ) CIVIL NO. 17-1-1823-11 (JPC) ) (Declaratory Judgment) Plaintiff, ) ) MEMORANDUM IN SUPPORT OF vs. ) MOTION ) STATE OF HAWAI‘I; UNIVERSITY OF ) HAWAI‘I; DEPARTMENT OF LAND ) AND NATURAL RESOURCES; BOARD ) OF LAND AND NATURAL RESOURCES; ) JOHN DOES 1-10; JANE DOES 1-10; DOE ) PARTNERSHIPS 1-10; DOE ) CORPORATIONS 1-10; and DOE ) GOVERNMENTAL ENTITIES 1-10, ) ) Defendants. ) ) [The Remainder of this Page is Intentionally Left Blank] TABLE OF CONTENTS Page(s) I. INTRODUCTION....................................................................................................1 II. RELEVANT BACKGROUND A. The Ceded Lands Trust and the Public Trust ................................................2 B. The Mauna Kea Science Reserve Leases .........................................................3 C. 1998 Audit of the MKSR (1968-1998) ..............................................................4 D. 2005 Follow-up Audit of the MKSR (1998-2005) ............................................6 E. UH’s “Comprehensive” Management Plan Developed After Forty Years ..7 F. 2014 Follow-up Audit of the MKSR (2005-2014) ............................................8 G. 2017 Follow-up Report on 2014 Audit and After (2014-Present) ..................9 III. LEGAL STANDARD FOR SUMMARY JUDGMENT .......................................10 IV. DISCUSSION ...........................................................................................................11 A. The General Lease and UH’s Subleases Represent Ongoing Breaches of Defendants’ Fiduciary Duties .......................................13 B. UH’s Management Plans Are Ineffective and Allow Widespread Mismanagement to Continue Without Oversight and Adequate Standards ..................................................14 C. UH Favors Development of its Astronomy Activities and Institutional Prestige at the Expense of Mauna Kea’s Cultural Significance to Native Hawaiians ..............................................................................................16 V. CONCLUSION ........................................................................................................17 i TABLE OF AUTHORITIES Page(s) Cases Ahuna v. Dept. of Haw. Home Lands, 64 Haw. 327, 640 P.2d 1161 (1982) ................................ 12 Anderson v. State, 88 Hawai‘i 241, 956 P.2d 783 (App. 1998) ........................................................................... 11 Ching v. Case, 145 Hawai‘i 148 P.3d 1146 (2019)........................................................................................ 10 In re Contested Case Hearing re Conservation Dist. Use Application (CDUA) Ha-3568 for the Thirty Meter Telescope at the Mauna Kea Sci. Reserve, 143 Hawai‘i 379, 431 P.3d 773 (2018).................................................................................... 3 In re Water Use Permit Applications, 94 Hawai‘i 97, 9 P.3d 409 (2000).......................................................................................... 14 Mauna Kea Anaina Hou v. Bd. of Land & Nat. Res., 136 Hawai‘i 376 P.3d 224 (2015).......................................................................................... 10 Mauna Kea Anaina Hou v. Bd. of Land and Nat. Res., Civ. No. 04-1-397 (2007) ........................ 7 Office of Hawaiian Affairs v. Hous. & Cmty. Dev. Corp., 117 Hawai‘i 174, 177 P.3d 884 (2008)................................................................................ 1, 3 Office of Hawaiian Affairs v. State, 110 Hawai‘i 133 P.3d 767 (2006).................................................................................... 12, 13 Pele Def. Fund v. Paty, 73 Haw. 578, 837 P.2d 1247 (1992) ...................................................................................... 12 Young v. Planning Comm’n of Cty. of Kaua‘i, 89 Hawai‘i 400, 974 P.2d 40 (Haw. 1999) ............................................................................ 11 Statutes Admission Act of March 18, 1959, Pub. L. No. 86-3, § 5, 73 Stat. 4, 5-6 ..................................................................................... 12 ii Other Authorities Haw. Const. Art. XII, § 4 .............................................................................................................. 12 Haw. Const. Art. XVI, § 7 ............................................................................................................ 12 Restatement (Second) of Trusts .................................................................................................... 13 Restatement (Third) of Trusts ....................................................................................................... 13 -iii- MEMORANDUM IN SUPPORT OF MOTION I. INTRODUCTION Plaintiff THE OFFICE OF HAWAIIAN AFFAIRS (“OHA”), by and through its attorneys, Klein Law Group, LLLC, hereby moves this Court for an order granting summary judgment on its claim2 that Defendants STATE OF HAWAI‘I (“State”), UNIVERSITY OF HAWAI‘I (“UH”), DEPARTMENT OF LAND AND NATURAL RESOURCES (“DLNR”), SUZANNE CASE, in her capacity as Chairperson of DLNR (“CHAIRPERSON CASE”), and BOARD OF LAND AND NATURAL RESOURCES (“BLNR”) (collectively, “Defendants”) breached and continue to breach their fiduciary duties as trustees of Mauna Kea,3 one of the most sacred sites in Native Hawaiian culture and a critically important parcel within the public lands trust and ceded lands trust. As observed by the Hawai‘i Supreme Court: ‘Āina, or land, is of crucial importance to the Native Hawaiian people--to their culture, their religion, their economic self- sufficiency and their sense of personal and community well-being. ‘Āina is a living and vital part of the Native Hawaiian cosmology, and is irreplaceable. The natural elements--land, air, water, ocean-- are interconnected and interdependent. To Native Hawaiians, land is not a commodity; it is the foundation of their cultural and spiritual identity as Hawaiians. The ‘āina is part of their ‘ohana, and they care for it as they do for other members of their families. For them, the land and the natural environment is alive, respected, treasured , praised, and even worshiped. Office of Hawaiian Affairs v. Hous. & Cmty. Dev. Corp., 117 Hawai‘i 174, 214, 177 P.3d 884, 924 (2008) (emphasis in original). Defendants’ failure to recognize the natural and cultural importance of Mauna Kea has manifested in gross mismanagement of the mauna that has spanned over five decades--since 1968--and has resulted
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