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






)


Plaintiff


)
PLAINTIFFS OPPOSITION TO






)
MOTION TO DISMISS AND






)
JOINDER; EXHIBITS 1 13;






)
CERTIFICATE OF SERVICE



Vs.


)











)







)

David Y. Ige, et al.,


)
DATE: OCTOBER 16, 2015






)
TIME: 9:30 A.M.


Defendants

)
JUDGE DERRICK K. WATSON
_________________________________________________)
PLAINTIFF NOBRIGAS MEMORANDUM IN OPPOSITION TO MOTION TO DISMISS
AMENDED COMPLAINT FILED JULY 24, 2015 OF DEFENDANT STEPHANIE
NAGATA, IN HER OFFICIAL CAPACITY AS DIRECTOR OF THE OFFICE OF MAUNA
KEA MANAGEMENT, AND IN HER PRIVATE CAPACITY, AND DEFENDANT DONALD
STRANEY, IN HIS OFFICIAL CAPACITY AS CHANCELLOR, UNIVERSITY OF HAWAII
AT HILO, AND IN HIS PRIVATE CAPACITY AND OPPOSITION TO STATE OF
HAWAII DEFENDANTS SUBSTANTIVE JOINDER IN UNIVERSITY OF HAWAII AT
HILO DEFENDANTS [SIC] MOTION TO DISMISS AMENDED COMPLAINT FILED
JULY 24, 2015

TABLE OF CONTENTS

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

II. RULE 12 STANDARDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

III. ANALYSIS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4


A. NOBRIGA CLAIM IS NOT MOOT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4


B. RELIEF SOUGHT DOES REDRESS INJURY . . . . . . . . . . . . . . . . . . . . . . . . . . 7


C. INJURY TO PLAINTIFF IS REAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10


D. IMMUNITY IS NOT AVAILABLE TO NAGATA AND STRANEY . . . . . . . . . 19


E. THE CONSPIRACY ALLEGATION IS BASED ON FACTS THAT

PLAUSIBLY ENTITLED PLAINTIFF TO RELIEF . . . . . . . . . . . . . . . . . . . . . . . 25


F. PLAINTIFF HAS A VALID FIRST AMENDMENT CLAIM . . . . . . . . . . . . . . . . 27


G. PLAINTIFF HAS A VALID FIFTH AMENDMENT CLAIM . . . . . . . . . . . . . . . . 28


H. PLAINTIFF HAS A VALID FOURTEENTH AMENDMENT CLAIM . . . . . . . 29


I. PLAINTIFFS AMENDED COMPLAINT SATISFIES THE PLEADING

REQUIREMENTS TO ESTABLISH JURISDICTION FOR THIS

HONORABLE COURT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29



J. ADDITIONAL RESPONSE TO STATE JOINDER: PREFACE . . . . . . . . . . . . . . . 31


K. STATE DEFENDANTS MOTION DOES NOT ADDRESS MOST OF

PLAINTIFFS ALLEGATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33


L. THE CONSPIRACY ALLEGATIONS AGAINST STATE DEFENDANTS

ARE SUFFICIENTLY SPECIFIC AND THE ALLEGED FACTS PLAUSIBLY

SUPPORT THE ALLEGATION OF CONSPIRACY . . . . . . . . . . . . . . . . . . . . . . . 34


M. STATE DEFENDANTS ARE NOT ENTITLED TO QUALIFIED

IMMUNITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

IV. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

ii

TABLE OF AUTHORITIES

CASES

Aguiar v. Hawaii Hous. Auth., 55 Haw. 478, 522 P.2d 1255 (1974) . . . . . . . . . . 21

Alcoa Inc. v. Bonneville Power Admin, 698 F3d 774 (9th Cir. 2012) . . . . . . . . . . 6

Ariz. Right to Life Political Action Committee v. Bayless,

320 F.3d 1002 (9th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Brown v. Board of Education, 347 U.S. 483 (1954) . . . . . . . . . . . . . . . . . . . . . . . . . 29

Burwell v. Hobby Lobby Stores, 134 S. Ct. 2751 (2014) . . . . . . . . . . . . . . . . . . . . . 18

Cal. Pro-Life Council v. Getman, 328 F.3d 1088 (9th Cir. 2003) . . . . . . . . . . . . . . . 12

Citizens United v. Federal Election Commission, 558 U.W. 310 (2010) . . . . . . . 31

City of Los Angeles v. Lyons, 461 U.S. 95 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Doe v. Madison Sch. Dist No 321, 177 F.3d 789 (9th Cir. 1999) . . . . . . . . . . . . . . . 6

Employment Div. v. Smith, 494 U.S. 872 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Harlow v. Fitzgerald, 457 U.S. 800 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Herrera v. Medical Ctr. Hosp, 241 F. Supp. 2d 601 (ED La. 10010 . . . . . . . . . . 20

Hishon v. King & Spalding, 467 U.S. 69 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Hospital Bldg. Co. v. Trustees of Rex Hosp., 425 U.S. 738 (1976) . . . . . . . . . . . . 33

Love v. U.S., 915 F.2d 1242 (9th Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Lyng v. Northwest Indian Cemetery Protective Assn,

485 U.S. 439 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Malley v. Briggs, 475 U.S. 335 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19, 36

Mitchell v. Forsythe, 472 U.S. 511 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Scheuer v. Rhodes, 416 U.S. 232 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Wood v. Strickland, 420 U.S. 308 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

iii

UNITED STATES CONSTITUTION

First Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Fifth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Fourteenth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

UNITED STATES STATUTES

18 U.S.C. 242 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 31

28 U.S.C. 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

42 U.S.C. 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

42 U.S.C. 1996 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-15

42 U.S.C. 11701 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

HAWAII STATUTES

Hawaii Revised Statutes

Section 91-2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Section 91-3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22, 23, 24, 28

Section 91-4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

RULES

Federal Rules of Civil Procedure

Rule 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Rule 12(b)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

DLNR Game Mammal Hunting Rules

Section183D . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Section 12-123-21.1 Emergency DLNR Rules

iv

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






)


Plaintiff


)
PLAINTIFFS OPPOSITION TO






)
MOTION TO DISMISS AND






)
JOINDER; EXHIBITS 1 13;






)
CERTIFICATE OF SERVICE



Vs.


)











)







)

David Y. Ige, et al.,


)
DATE: OCTOBER 16, 2015






)
TIME: 9:30 A.M.


Defendants

)
JUDGE DERRICK K. WATSON
_________________________________________________)
PLAINTIFF NOBRIGAS MEMORANDUM IN OPPOSITION TO MOTION TO DISMISS
AMENDED COMPLAINT FILED JULY 24, 2015 OF DEFENDANT STEPHANIE
NAGATA, IN HER OFFICIAL CAPACITY AS DIRECTOR OF THE OFFICE OF MAUNA
KEA MANAGEMENT, AND IN HER PRIVATE CAPACITY, AND DEFENDANT DONALD
STRANEY, IN HIS OFFICIAL CAPACITY AS CHANCELLOR, UNIVERSITY OF HAWAII
AT HILO, AND IN HIS PRIVATE CAPACITY AND OPPOSITION TO STATE OF
HAWAII DEFENDANTS SUBSTANTIVE JOINDER IN UNIVERSITY OF HAWAII AT
HILO DEFENDANTS [SIC] MOTION TO DISMISS AMENDED COMPLAINT FILED
JULY 24, 2015

I. INTRODUCTION

Defendants Nagata and Straney filed their Motion to Dismiss Amended

Complaint Filed July 24, 2015 of Defendant Stephanie Nagata, in her Official
Capactiy as Director of the Office of Mauna Kea Management, and in her Private
Capacity, and Defendant Donald Straney, in his Official Capacity as Chancellor,
University of Hawaii at Hilo, and in his Private Capacity (hereinafter N/S Mot.)

The State of Hawaii Defendants filed their State of Hawaii Defendants

Substantive Joinder in University of Hawaii at Hilo Defendants [sic] Motion to

Dismiss Amended Complaint Filed July 24, 2015 (hereinafter State Mot.).1 This
motion both joined in the Nagata and Straney motion and offered supplemental
argument. Id.

Plaintiff Nobriga herein presents his opposition to both motions.2

The motion to dismiss by Nagata and Straney is remarkable for the issues not

addressed: (1) the process used to adopt the rules in question and (2) the
substantive content of those rules.

These omissions are best explained by the total absence of any process

visible to the public and by the obviously unconstitutional content of the rules.

With that foundation, the motion by Nagata and Straney cannot offer a basis

for dismissing the case against them.

The motion by the State Defendants is also remarkable for what it does not

address. State Defendant Case, Chair of the Board of Land and Natural Resources, is
alleged to have participated in a conspiracy to issue a set of rules, entirely separate
from the rules at issue regarding Nagata and Straney, that similarly operated to
suppress spiritual practices and the movement to prevent desecration of the sacred
site by construction of the telescope. Amend. Compl. at 135 165.

1 State Defendants refer to the first motion at issue as filed by University of Hawaii
at Hilo Defendants. The motion is actually filed by the Defendant Nagata, who is
Executive Director of the Office of Mauna Kea Management, and Defendant Straney,
who is the Chancellor of the University of Hawaii at Hilo.
2 Because the rules permit Plaintiff to respond to the joinder in a separate pleading,
Local Rule 7.9, and because Plaintiff is responding to the original motion and the
joinder in this one pleading, the rules allow Plaintiff a total of sixty pages. Plaintiff
will use far fewer.

While the allegations of conspiracy apply to all named defendants, the Nagata

and Straney motion is based on separate factual allegations from those forming the
basis for suit against the State Defendants. The joinder is ineffective in relying on
the Nagata and Straney arguments to seek the same relief.3

The State Defendants motion does not address either the procedural or

substantive issues raised by Plaintiff Nobrigas challenge to that second set of rules.
Id.; State Mot. To Dismiss at 4 5.

With the joinder ineffective, the State Defendants motion seeks only the

dismissal of the conspiracy allegation against the State Defendants and dismissal
based on a qualified immunity defense. Id.

Because the State Defendants Motion does not address the rules issued by

the BLNR and does not seek to dismiss the allegations based on the procedural and
substantive challenges by Plaintiff to those rules, Plaintiffs opposition will not
address those allegations.
II. RULE 12 STANDARDS

Opposing counsel correctly states the law applicable to a motion brought

pursuant to FRCP 12(b)(6). N/S Mot. To Dismiss at 2-3.

Applying that law to Plaintiffs Amended Complaint requires denying the

Motion to Dismiss.

3 While there may be similar legal challenges that the State Defendants could join,
e.g. jurisdiction of this court, there are also challenges that are specific to the facts
related to Nagata and Straney and not the State Defendants, e.g. the absence of any
process in adoption of the Nagata/Straney rules and the emergency declaration by
State defendants. The joinder makes no effort to distinguish which legal and/or
factual arguments in the Nagata/Straney pleading apply to the State Defendants and
which do not.


III. ANALYSIS

A. Nobriga Claim is Not Moot

Nagata and Straney seek to use the termination of the challenged rules after

this case was filed as support for finding the issues raised by the rules to be moot
and not falling within the mootness exception for capable of repetition, yet evading
review. N/K Mot. at 25.

The mootness assertions are made with no discussion of the process by

which the rules were adopted nor the contents of the rules. Ibid. at 24 26.

Accepting the allegations in the Amended Complaint as true, the rules were

adopted with no discernable process and rescinded with no discernable process.

Amend. Compl. 108 -113, 132 133. Precisely because OMKM chose to impose
and rescind the rules in a hidden process, there is no record of the process available
for judicial review and no means for this Court to determine whether a similar
illegal process might be utilized in the future.

Accepting the allegations of the Amended Complaint as true, the rules

specifically targeted one spiritual practice. Amend. Compl. 114 124. Because
there was no visible process in adopting those restrictions, there is no record of the
reasons for adopting the rules. There is, therefore, no way for this Court to
determine whether similar rules would be adopted in the future.

As to evading review, that is precisely what Nagata now argues should

happen. The rules were in place for a short period of time, during which this suit

was filed, and rescinded before the issues raised in this suit could be resolved.4

The rules were in place for less than two weeks, which was not sufficient

time to fully litigate either the process (or lack thereof) by which they were adopted
or their substantive content and impact.

Nagata and Straney completely evade any discussion of the contents of the

rules and offer no justification for the adoption of such rules. This Court, therefore,
has no record from which to determine whether similar rules might be adopted in
the future.

The Court can take judicial notice of the fact that the status quo in place at

this time would not foreclose the TMT from pursuing continued construction.
http://www.buzzfeed.com/mbvd/hawaii-governor-says-telescope-construction-
will-continue-on#.hh8NK7N17 (The Thirty Meter Telescope got a boost in April
when Hawaii Gov. David Ige announced that construction of the giant telescope had
a right to proceed during the court challenge and that the state would support it.)

4 After the successful blockade prevented TMT personnel from reaching the
construction site on June 24, 2015, the University announced it was closing the
Mauna Kea Access Road/John Burns Way.
http://www.bizjournals.com/pacific/news/2015/06/25/rocks-removed-but-
hawaii-access-road-to-thirty.html

Based on information and belief, the Nagata/Straney rules went into effect on
July 1, 2015.

Those rules applied only to practitioners of the traditional Hawaiian faith and
not to others using the road. Amend. Compl. at 124.

This lawsuit was filed on July 6, 2015.

The University of Hawaii reopened the Mauna Kea Access Road/John Burns
Way on July 13, 2015. http://bigislandnow.com/2015/07/13/mauna-kea-summit-
access-road-fully-reopened/

Based on information and belief, the Nagata/Straney rules were rescinded on
July 13, 2015. At that point, the new BLNR rules went into place. Id.

Nor does the status quo foreclose the Protectors of the Mountain from

pursuing actions to prevent desecration of the sacred site.

Thus, the conditions that may have prompted the adoption of the challenged

rules are still in place.

The State actors have also repeatedly refused to respond to a proposal for

peaceful resolution of the current controversy, at least until the Hawaii Supreme
Court can rule. See Exhibit 1.

As to whether those conditions create a reasonable expectation that the

petitioner would again face the same alleged invasion of rights, N/W Mot. at 26
citing Alcoa, Inc. v. Bonneville Power Admin., 698 F.3d 774, 787 (9th Cir. 2012), the
failure of the agency to provide any basis for the invasion the first time makes it
impossible to determine whether the agency would take the same action again.5

The complete absence of any public process for adoption of the challenged

rules is certainly an extraordinary situation qualifying this case for the exception
to the mootness rule. N/K Mot. at 26 citing Doe v. Madison Sch. Dist No. 321, 177
F.3d 789, 798 (9th Cir 1999).

The agency cannot benefit from its total lack of transparency and legal

process by having that violation of law serve as a basis for Plaintiff being denied
review and relief.



5 This case does not fall into a category of cases that can be litigated at some time in
the future. Doe v. Madison Sch. Dist No. 321, 177 F.3d 789, 798 (9th Cir 1999)
(challenge to school prayer). Nor is the issue in this case impossible of repetition.
Ibid. (forced to participate in prayer at high school graduation).

B. The Relief Sought Does Redress the Injury

Nagata and Straney argue that the relief sought does not redress the injury.

N/S Mot. at 22-24. They cite City of Los Angeles v. Lyons, 461 U.S. 95 (1983). Ibid. at
23.

To some extent, this argument is another form of the mootness argument

because the court in Lyons found that the behavior causing the injury was unlikely
to be repeated. Id.

Again, the absence of any explanation for why the Nagata/Straney rules

issued forecloses this court making a determination on the likelihood of the same
action being repeated.

The circumstances of the continued intention to build the TMT and the

continued intention of thousands of people to oppose the project create the

possibility of a situation arising in which the University and/or OMKM will reinstate
the same or similar rules using the same non-existent process.

The very absence of any process is prima facie evidence of an agency and its

Executive Director and/or an institution and its Chancellor willing to act in a lawless
fashion to further the construction of the TMT.

The true goal of the motion to dismiss is to remove any possible limitation or

oversight that would prevent their return to such lawless behavior. They seek
license from this Court for their lawless behavior. Injunctive relief is the remedy
best suited to inform Nagata and her agency and Straney and his institution of the
constitutional and statutory requirements which govern their rule making
processes and the substantive rules that they adopt.

Nagata and Straney attempt to redefine the actual injury and the remedy

sought in order to argue the lack of an adequate remedy.

Nagata and Straney argue that Plaintiffs fundamental claim is against the

building of the telescope on Mauna Kea. N/S Mot. at 23. They argue that Plaintiffs
injury claim is the desecration of the sacred Mountain. Id. They argue that the
remedy Plaintiff seeks is a court order stopping the construction of the telescope.
Id. They argue that the injury alleged ultimately is the illegal overthrow of the
Kingdom of Hawaii Government. Ibid. at 24.

All of these arguments ignore the plain wording of the Amended Complaint,

to wit:
to prevent violations of the constitutional rights of traditional faith
practitioners and others seeking to protect Mauna a Wkea from desecration.

Amend. Compl. at 181 (emphasis added).

Plaintiffs position on whether the telescope should be built or not is

irrelevant to the question whether State officials engaged in and continue to engage
in a conspiracy to prevent those who are opposed to the building of the telescope,
including and not limited to traditional practitioners, from expressing that
opposition in constitutionally protected ways.

This Court can protect the constitutional rights of those opposed to the

telescope without reaching the merits of the question on whether the telescope
should be built.

After creating a false narrative characterizing Nobrigas position as asking

the Court to stop the TMT, Nagata and Straney cite Lyng v. Northwest Indian
Cemetery Protective Assn, 485 U.S 439 (1988) for the proposition that following

Lyng, the Court could not prohibit the construction of the TMT on public land. N/S
Mot. at 23-24.

Lyng is cited for the wrong proposition. The challenged rules fall within the

alternative legal analysis suggested in Lyng, to wit:

The Constitution does not permit government to discriminate against
religions that treat particular physical sites as sacred, and a law prohibiting
the Indian respondents from visiting the Chimney Rock area would raise a
different set of constitutional questions.

Lyng v. Northwest Indian Cemetery Prot. Assn, 485 U.S. 439, 453 (1988).

The University/OMKM rules being challenged did amount to prohibiting

traditional practitioners access to their sacred site.6 Accepting the Amended

Complaint as true, Amend. Comp. 107-133, the rules offered a limited window of
opportunity for a limited number of spiritual practitioners to access the Mountain
that amounted to total exclusion for at least some.

Those wishing to ascend had to present themselves to an OMKM Ranger at

1:00 p.m. If there were more than ten people present, only ten could ascend the
mountain. The ten or fewer people could go up on the Mountain for one hour and
then had to return to the 9,000 foot level. Amend. Compl. at 115 122.

The effect of these regulations was to severely restrict access for some

practitioners and bar access altogether for those arriving after 1:00 p.m or arriving
after ten people had already presented themselves.

6 The claim by Nagata and Straney that the challenged rules and regulations are
facially neutral and apply to all persons seeking access to Mauna Kea, N/S Mot. at
14, n. 6, is simply false. Given the failure of OMKM/University to publish the rules
anywhere, the description of the rules by the Plaintiff is the only basis for making
the neutral determination. That description clearly states that the rules are
targeted on spiritual practitioners and not others. Amend. Compl. 107 124.

These restrictions and prohibitions were not incidental effects of a broader

governmental regulatory program. The rules targeted the spiritual practitioners

specifically and applied to the spiritual practitioners exclusively. Ibid. at 123.

The rules did not apply to non-practitioners. Astronomers, water trucks,

nitrogen trucks, tourists, and others were free to ascend the Mountain without any
restrictions. Ibid. at 124.

An injunction that (1) prohibited the adoption of new rules without

conformance to the statutory requirements for such an action, (2) prohibited the
adoption of rules that specifically targeted one faith, and (3) prohibited the adoption
of rules that prevented spiritual practitioners from accessing their spiritual site,
other than by a rule of general applicability adopted for compelling purpose, e.g.
closing the road during a snow storm, would go a long way toward redressing the
injury alleged by Plaintiff.

C. Injury to Plaintiff is Real.

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 2
at 1-8.

Nagata and Straney argue that the placement of severe restrictions on the

practice of that faith on Mauna a Wkea does not injure the Kahuna in any way
because he has not personally been subjected to those restrictions. N/S Mot. at 21-
22.

10

Had the OMKM/University issued rules specifically applicable only to

Catholics, such rules would be unconstitutional on their face, no matter how or

whether applied. Any Catholic would have standing to challenge the rules and
succeed effortlessly in that challenge.

If the OMKM/University issued rules restricted the practice of Catholicism

beyond any need to meet a compelling governmental purpose, the rules would also
be unconstitutional as applied.

The OMKM rules in question apply only to the traditional faith of the

Hawaiian people.

That faith has the same right to practice and the same right to be free of

governmental discrimination as any other faith.7

The argument that the Temple of Lono must meet some other requirement

than being a religious practice protected by the First Amendment challenging

facially discriminatory rules simply perpetuates the relegation of the traditional
faith of the Hawaiian people to a second-class status related to other faiths.

Yet Nagata and Straney argue that rules issued that are applicable only to the

traditional faith of the Hawaiian people can only be challenged by someone who
first subjects himself to the rules in order to establish injury. In making that

7 In an attempt to characterize the rules as neutral, Nagata and Straney place
Plaintiffs faith in quotes, i.e. traditional faith, as if Plaintiffs faith is not real. N/S
Mot. at 16, 17. If Plaintiffs faith is not real, then rules appearing to target that faith
would arguably be neutral.

Nagata and Straney would not place Catholic in quotation marks unless they
meant to characterize the person described as not truly following that faith. This
denigration of the traditional Hawaiian faith is totally inappropriate.

11

argument, Nagata and Straney attempt to evade the obvious issue of the rules being
facially unconstitutional.

Alternatively, Plaintiff did face injury from the rules as applied. While the

OMKM Rangers lack law enforcement authority, the Amended Complaint alleges
that they turned to law enforcement agencies to enforce their restrictions on
religious practice. Amend. Compl. 118, 131.

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 this case, 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 targeting his faith, and only his faith, and severely limiting
the practice of his faith, the OMKM/University 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.

12

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

Hawaiian faith into the overall governance of the Hawaiian civilization.8 He

established the Kingdom of Hawaii Government at Ahuena9 inside the boundaries
of the Puuhonua Hale O Keawe, the spiritual land base of the traditional faith.10 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
took the fruit trees in an ahupuaa11, the people of that district would come to the
Puuhonua for replacement trees. The Puuhonua was also the site of academies that

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

10 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.

11 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.

13

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.

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 181912, 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.13

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.

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

12 There is controversy as to the precise year in which he died.
13 These laws have never been rescinded.

14

(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.14

Based on the promise of this law, Sam Lono, Kahuna of the Temple of Lono,15

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).

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.16

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

right to practice his faith.

14 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.)
15 Kahuna Nu Pali Ku Samuel Hoopii O Kalani Lono o Ka Makahiki Po Paki.
16 At that time, camping without a permit was not an offense for which one could be
arrested.

15

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.
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.

16

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 3 8.

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

OMKM/University of Hawaii simply continued the illegal and unconstitutional

official practice of suppressing attempts to practice the traditional faith of the
Hawaiian people.

The restrictions on Mauna a Wkea had the additional element of the

University treating the traditional faith as no longer practiced.

The website of the University of Hawaii Imiloa Astronomy Center states:

Cultural Significance
The Mountain of Wkea

The original name of Maunakea is Mauna a Wakea, or Mountain of Wakea.
In Hawaiian tradition Wakea (sometimes translated in English as Sky
Father) is the progenitor of many of the Hawaiian Islands, and of the
Hawaiian people. This mountain is his piko, or the place of connection where
earth and sky meet and where the Hawaiian people connect to their origins
in the cosmos.

Realm of the gods

As a sacred site, many of the physical features and environmental conditions
of the mountain are associated with Hawaiian gods and goddesses. Lilinoe,
Poliahu, and Waiau are just a few of the deities associated with this place.

17


The summit of Maunakea was considered a wao akua, or realm of the gods
and was therefore visited only rarely by humans.

http://www.imiloahawaii.org/60/cultural-significance.


The heading Cultural Significance should really be Spiritual Significance.
That statement says that the summit was considered to be the realm of the gods.
The use of the word was is an attempt to characterize the spiritual practice in
question as no longer a practiced faith. Officially pronouncing the traditional faith
as gone would be the ultimate success for the missionaries and set yet another
precedent for the official oppression of any attempt to practice that faith.

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, despite the long running effort to
extinguish the faith.

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 burden becomes even higher when the State action is tantamount to

denying access to a spiritual site.

The Constitution does not permit government to discriminate against
religions that treat particular physical sites as sacred, and a law prohibiting
the Indian respondents from visiting the Chimney Rock area would raise a
different set of constitutional questions.

Lyng. 485 U.S. at 453.

18

The history of the faith is one of suppression and bigotry that continues to

this day, with the OMKM/University rules just the latest chapter.

D. Immunity is Not Available to Nagata and Straney

Nagata and Straney claim qualified immunity as public officials. N/S Mot. at

19-21.

Public officials are subject to suit, if the tests for immunity are not met.

Mitchell v. Forsyth, 472 U.S. 511, 520-24 (1985) (rejecting absolute immunity for
cabinet officers and individuals performing national security investigations);
Harlow v. Fitzgerald, 457 U.W. 800, 808-13 (1982) (high-ranking presidential
aides); Wood v. Strickland, 420 U.S. 308, 322 (1975) (school officials); Scheuer
v. Rhodes, 416 U.S. 232, 247-49 (1974) (governors, state adjunct generals,
national guard officers, enlisted members, and presidents of state universities).
As argued by Nagata and Straney, the tests are whether the officials are
demonstrably incompetent or knowingly violated the law. N/S Motion at 19
citing Malley v. Briggs, 475 U.S. 335, 341 (1986).
In this case, Nagata and Straney either had no understanding that the
issuance of new rules by OMKM and/or the University required following a
statutory process or they knowingly issued the rules without even attempting to
satisfy the statutory process requirements.
Also in this case, Nagata and Straney either believed that OMKM and/or
the University had the authority to issue rules that severely restricted the time
and place for a particular faith to practice, while not making those rules
applicable to any other faith or the public generally, or they knew the rules issued
violated United States constitutional protections provided to the practice of faith.

19

Because there was no process and, therefore, no record available for

review, there is no evidentiary basis for determining whether the exception for
incompetence or the exception for deliberateness applies. Certainly one or the
other does apply.
The motion by Nagata and Straney provides no insights into how the rules
were adopted or the understanding the defendants had regarding the
constitutional rights of those affected by the rules, again leaving a blank record
for determining incompetence or knowing violation.
Nagata and Straney argue that a government official simply asserting
qualified immunity shifts the burden to the Plaintiff to establish that the
defendants actions (or lack thereof) violated clearly established law. N/S Mot.
at 21 citing Herrera v. Medical Ctr. Hosp, 241 F. Supp. 2d 601, 615 (ED La. 1001)
(citation omitted). 17
The clearly established law is that an executive agency seeking to issue
rules applicable outside the agency is required to follow a statutorily defined
process. The clearly established laws violated by Nagata and Straney include:
HRS 91-2(a)(3): Make available for public inspection all rules and written
statements of policy or interpretation formulated, adopted, or used by the
agency in the discharge of its functions.

The rules at issue here were never made available for public inspection.
HRS 91-2(a)(4): Make available for public inspection all final opinions and
orders.

17 Nagata and Straney argue that, because the rules in question are new and have
not been subject to judicial review, their issuance cannot have violated clearly
established law. N/S Mot. at 21. Based on this argument, a plaintiff could never
challenge a new rule because every new rule issued would pass the qualified
immunity test. The argument misreads the phrase clearly established law.

20


To the extent the challenged rules represented orders, the orders were
never made available for public inspection.

HRS 91-2(a)(4)(b) No agency rule, order, or opinion shall be valid or

effective against any person or party, nor may it be invoked by the agency for
any purpose, until it has been published or made available for public
inspection as herein required, except where a person has actual knowledge
thereof.

As the rules in question were never published or made available for public

inspection, the rules were never effective and their enforcement was ultra vires.18

HRS 91-2.6 (a) Beginning January 1, 2000, all state agencies, through the
office of the lieutenant governor, shall make available on the website of the
office of the lieutenant governor each proposed rulemaking action of the
agency and the full text of the agency's proposed rules or changes to existing
rules.

The challenged rules were never posted on Lieutenant Governors website.

HRS 91-2.6(b)(2) Advise individuals contacting the state agency of the

availability of the proposed rulemaking actions and the full text of the
agency's proposed rules on the lieutenant governor's website.

As the rules were never posted on the Lieutenant Governors website,

conformance with this statute was impossible.

HRS91-3(a) Except as provided in subsection (f), prior to the adoption of
any rule authorized by law, or the amendment or repeal thereof, the adopting
agency shall:
(1) Give at least thirty days' notice for a public hearing. The notice
shall include:
(A) A statement of the topic of the proposed rule adoption,
amendment, or repeal or a general description of the subjects
involved; and

18 The actual knowledge exception applies only to rules adopted pursuant to 91-3
and 91-4. Aguiar v. Hawaii Hous. Auth., 55 Haw. 478, 522 P.2d 1255 (1974). The
challenged rules were not adopted pursuant to those sections, so the exception does
not apply.

21

(B) A statement that a copy of the proposed rule to be

adopted, the proposed rule amendment, or the rule proposed
to be repealed will be mailed to any interested person who
requests a copy, pays the required fees for the copy and the
postage, if any, together with a description of where and how
the requests may be made;
(C) A statement of when, where, and during what times the
proposed rule to be adopted, the proposed rule amendment, or
the rule proposed to be repealed may be reviewed in person;
and
(D) The date, time, and place where the public hearing will be
held and where interested persons may be heard on the
proposed rule adoption, amendment, or repeal.
The notice shall be mailed to all persons who have made a timely
written request of the agency for advance notice of its rulemaking
proceedings, given at least once statewide for state agencies and in
the county for county agencies. Proposed state agency rules shall also
be posted on the Internet as provided in section 91-2.6; and
(2) Afford all interested persons opportunity to submit data, views, or
arguments, orally or in writing. The agency shall fully consider all
written and oral submissions respecting the proposed rule. The
agency may make its decision at the public hearing or announce then
the date when it intends to make its decision. Upon adoption,
amendment, or repeal of a rule, the agency, if requested to do so by an
interested person, shall issue a concise statement of the principal
reasons for and against its determination.

Because there was no process, Nagata and Straney violated every section of

HRS91-3. This section is clearly established law subjected to extensive judicial

interpretation.

The OMKM explicitly failed to fulfill its statutory responsibility under

HRS91-3(a)(2) to provide a concise statement of the principal reasons for and

against its determination when requested to do so by an interested party. Exhibit
9.

Even if Nagata and Straney would like to avail themselves of the emergency

exception in this law, HRS91-3(b), they failed to comply with even the minimal
requirements in that statutory section.

22

HRS91-3(b) Notwithstanding the foregoing, if an agency finds that an

imminent peril to the public health, safety, or morals, to livestock and poultry
health, or to natural resources requires adoption, amendment, or repeal of a
rule upon less than thirty days' notice of hearing, and states in writing its
reasons for such finding, it may proceed without prior notice or hearing or
upon such abbreviated notice and hearing, including posting the abbreviated
notice and hearing on the Internet as provided in section 91-2.6, as it finds
practicable to adopt an emergency rule to be effective for a period of not
longer than one hundred twenty days without renewal.

If Nagata and/or Straney made a determination of imminent peril, there is

no record of any such determination. Nor did they issue a written statement
containing the reasons for such a finding. Nor did they post even an abbreviated
notice in compliance with HRS 91-2.6. Nor is there any record of how or when the
rules were adopted or even who actually adopted the rules. Nagata and Straney
failed to comply with any of the provisions in HRS 91-3(b)

Even were Nagata and Straney found to have somehow pursued an

emergency process, the failure to file certified copies of the rules or to publish the
rules adopted means that the rules were never legally in effect and all enforcement
of the rules was without authority. HRS 91-4.
HRS91-3(c) The adoption, amendment, or repeal of any rule by any state
agency shall be subject to the approval of the governor.

There is no record of the Governor having approved the rules in question.


Just as there was no process followed in adopting the rules, there was also no
process followed when the rules were repealed.
HRS 91-3(f) Whenever an agency seeks only to repeal one or more sections,
chapters, or subchapters of the agency's rules because the rules are either
null and void or unnecessary, and not adopt, amend, or compile any other
rules:
(1) The agency shall give thirty days' public notice at least once statewide of
the proposed date of repeal and of:

23

(A) A list of the sections, chapters, or subchapters, as applicable,

being repealed; and
(B) A statement of when, where, and during what times the sections,
chapters, or subchapters proposed to be repealed may be reviewed in
person;
(2) The agency shall post the full text of the proposed sections, chapters, or
subchapters to be repealed on the Internet as provided in section 91-2.6; and
(3) Any interested person may petition the agency regarding the sections,
chapters, or subchapters proposed to be repealed, pursuant to section 91-6.

This subsection does not apply to the repeal of one or more
subsections, paragraphs, subparagraphs, clauses, words, phrases, or other
material within a section that does not constitute the entire section to be
repealed.19


In rescinding the rules in question, Nagata and Straney violated all the
provisions of HRS 91-3(f).

One effect of the extensive and comprehensive violations of statutory

requirements regarding the adoption of rules was to deny anyone outside the
agency notice of the proposed action and an opportunity to be heard on
whether the rules should be adopted and, if so, the specific nature of those
rules. HRS 91-3(a)(1), (2).

This violation of Due Process satisfies the immunity test for actions

that violate constitutional rights.

The substantive attacks upon a particular faith violated the First

Amendment rights of the practitioners of the targeted faith. That attack also
satisfies the immunity test for actions that violate constitutional rights.

The right of an interested party to have notice and an opportunity to

be heard in a State administrative proceeding was clearly established at the

19 As there is no public record identifying the placement of the rules in question
within the overall regulatory scheme of the OMKM and/or University, e.g. section,
subsection, etc., Nagata and Straney cannot argue this exception.

24

time Nagata and Straney issued the rules in question without providing such
notice and opportunity.

The right of a faith to be free of State sponsored suppression

deliberately targeting the faith was also a right clearly established at the time
Nagata and Straney issued the rules in question.20

Issuing rules using a process that violated every statutory

requirement, including those that ensure due process in agency proceedings,

and containing provisions that singled out one faith for severe restrictions
surely disqualifies Nagata and Straney from immunity.

The whole argument that the pursuit of a legitimate state purpose

trumps Plaintiffs claims, N/S Mot. 13-17, is irrelevant and fails because the
OMKM/University never articulated any purpose prior to adopting the rules,
let along a compelling governmental purpose. No ex post facto
rationalizations can cure this fundamental defect.

E. The Conspiracy Allegation is Based on Facts that Plausibly Entitle
Plaintiff to Relief.


Nagata and Straney argue that the conspiracy allegations against them
should be dismissed as conclusory, vague, and general. N/S Mot. at 17.

The Amended Complaint contains specific allegations regarding the purpose

of the conspiracy, Amend. Compl. 9 (a coordinated effort to suppress the First

Amendment rights of those who seek to prevent the desecration of a sacred site by

20 While the government can regulate spiritual practice, those regulations must be
pursuant to a compelling state purpose. Employment Division, supra.; Burwell,
supra. Nagata and Straney are estopped from arguing any such compelling purpose
because they failed to articulate any purpose prior to issuing the rules.

25

stopping the construction of a private astronomical facility.).

Nagata and Straney argue that Plaintiff fails to specify what acts they

committed to further the conspiracy. N/S Mot. at 18.

The acts specifically attributed to OMKM as furthering the conspiracy include

the issuance of the rules identified by Plaintiff, Amend. Compl. at 114-122, the
issuance of those rules without any of the required legal process for such an agency
action, Ibid. at 107-113, and the actions taken to drive the Protectors off the
Mountain, even at the expense of public health and safety. Ibid. at 99-106.21

Plaintiff was hampered in preparing the conspiracy allegations against

Nagata and Straney by the illegal actions of Nagata and Straney. The absence of any
public process prior to the issuance of the rules attributed to OMKM and/or the
University and the failure of OMKM and/or the University to publish or otherwise
give public notice of the rules and their adoption prevented Plaintiff from
identifying exactly who was responsible for the preparation, approval, issuance, and
enforcement of the rules.

Similarly, Nagata and Straney argue that Plaintiff must show that Nagata and

Straney reached an understanding, N/S Mot. at 18, to participate in the conspiracy.

The absence of the publicly required process for adoption of the rules in question
prevented Plaintiff from learning such details of the conspiracy.

Nagata and Straney now seek to use their illegal absence of process to shield

then from legal liability.

21 The actions taken by OMKM, particularly the closing of all bathroom facilities and
forcing removal of alternative bathroom facilities brought in by the Protectors belies
any claim by OMKM that their intent was to protect public health and safety.
Amend. Compl. 101-106; Exhibit 10.

26

Even absent precise information as to the role played by Nagata and/or

Straney, the actions identified are prima facie evidence of an intent to suppress the
spiritual practitioners, who have joined numerous others in seeking to protect the
sacred Mauna, and prevent further protest, the same goal as the other State
defendants in this case pursued. Amend. Compl. 9.

The fact that the Rangers under the authority of OMKM implemented the

new rules is prima facie evidence that OMKM is responsible for the issuance of the
rules. Amend. Compl. 115-122.

To dismiss Plaintiffs conspiracy allegation against Nagata and Straney

because their illegal actions prevented Plaintiff from being adequately specific as to
their acts in furtherance of the conspiracy would be a manifest injustice.

F. Plaintiff has a Valid First Amendment Claim


Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof. First Amendment, United States Constitution.


Plaintiff has already discussed why the rules issued by OMKM and/or the
Univerisity were facially unconstitutional because they applied to only one faith and
prohibited the free exercise of that faith. Supra. at 10-12.

When Lyng states that a law prohibiting access to a sacred site would raise a

different set of constitutional questions, Lyng, supra. at 453, the reference is clearly
to the prohibition section of the Free Exercise clause.

In arguing that Plaintiffs First Amendment claim fails, N/S Mot. at 12-17,

Nagata and Straney characterize the rules in question as facially neutral and
apply[ing] to all persons seeking access to Mauna Kea, ibid. at 14, n. 6 and a valid
and neutral law of general applicability, ibid. at 16.

27

These characterization are simply false. Amend. Compl. at 107, 114 124.

Nagata and Straney also argue that Lyng requires that the government action

be a coercive action forcing a violation of religious beliefs or an action that penalizes

religious activity. N/S Mot. at 13 citing Lyng supra. at 449.

A practitioner of the traditional Hawaiian faith who sought to ascend the

Mauna for prayer at some time other than 1:00 p.m. or after ten people had already
committed to going up that day would face arrest and prosecution. Amend. Compl.
at 131. That governmental action would penalize religious activity. Id.

Rules that severely restrict the practice of the traditional Hawaiian faith to

the point of denying access to a sacred site and enforcement of those restrictions
with the threat of arrest and prosecution clearly violate the Free Expression Clause
of the First Amendment to the United States Constitution.

G. Plaintiff has a Valid Fifth Amendment Claim

No person shall be deprived of ... liberty without due process of law.

Fifth Amendment to the United States Constitution.

Assuming for the sake of argument that the rules in question did not on their

face and as-applied violate Plaintiffs First Amendment rights, Plaintiff still had the
right to be heard on whether the rules should be adopted. HRS 91-3.

Constitutional or not, the rules did affect spiritual practice of the traditional

Hawaiian faith. Any practitioner of that faith would have a cognizable interest in
being heard when rules are proposed that would affect that practice.

Having totally failed to conduct a regulatory process conforming to the

mandates of the applicable statutes, Nagata and Straney are foreclosed from arguing

28

that Plaintiffs due process rights were not violated in the issuance of the rules. In
particular, the absence of any process precludes this Honorable Court from finding
that Plaintiffs liberty interest was adequately protected in the adoption of the rules
in question.

H. Plaintiff has a Valid Fourteenth Amendment Claim


United States Constitution, Amendment XIV states:


Section 1. nor shall any State deprive any person of liberty without
due process of law; nor deny to any person within its jurisdiction the equal
protection of the laws..


As just argued, the absence of any process for adoption of the rules
addressed herein denies this Honorable Court a basis for determining that the
adoption of the rules did not violate Plaintiffs constitutionally protected liberty
interest.

The fact that the rules applied only to those engaged in practicing the

traditional faith of the Hawaiian people and did not apply to any other religious
practice or to any other people making use of the same access road as the
practitioners used denied practitioners of the traditional faith equal protection of
the laws.

The Fourteenth Amendment Equal Protection Clause requires states to

provide equal protection under the law to all those within the states jurisdiction.
Brown v. Board of Education, 347 U.S. 483 (1954).

I. 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

29

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, 131.22

As observed by Nagata and Straney, 18 U.S.C. 242 is the criminal analogue

of 42 U.S.C. 1983. N/S Mot. at 9. Prepared to meet the standard of beyond a

reasonable doubt to enforce 18 U.S.C. 242, Plaintiff is prepared to meet the lesser
standard to enforce 42 U.S.C. 1983.

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. 1331.23

22 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
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 1.

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. Exhibit 11.

This Honorable Court is the remaining institution capable of effectively
addressing Plaintiffs complaints.
23

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:

30

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. Op. at 14, January 21,2010. (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.)
J. Additional Response to State Joinder: Preface

For some reason, Counsel for the State Defendants attempts to raise a

question of Plaintiffs counsels bona fides as an attorney. State of Hawaii

Defendants Substantive Joinder in University of Hawaii at Hilo Defendants Motion
to Dismiss Amended Complaint Filed July 24, 2015 (hereinafter State Joinder at 4
n. 1.) [Plaintiff is represented by an attorney (although oddly that attorney is not

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.

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admitted to practice law in Hawaii except apparently in this court.) The complaint
is not entitled to the relaxed scrutiny afforded pro se litigants.]

When opposing Counsel earlier raised the issue of authorized practice with

Plaintiffs Counsel, Plaintiffs Counsel explained that under the rules in place at the
time Plaintiffs Counsel joined the Federal Bar in Hawaii, there was no requirement
that an attorney be licensed in the State of Hawaii in order to join the Federal Bar.
Exhibit 12. Plaintiffs Counsel provided opposing counsel the telephone number at
the Federal Court Clerks Office where he could confirm that Plaintiffs Counsel was
in good standing. Exhibit 13. Why that explanation and confirmation has failed to
satisfy opposing counsel is not readily apparent. Certainly, Plaintiffs Counsel has
not requested this court to treat the Plaintiff as proceeding pro se, as implied by
opposing counsels remark.

Opposing Counsel also expresses an intent to file for sanctions against

Plaintiffs counsel pursuant to Rule 11 or state disciplinary proceedings should

Plaintiffs counsel make false, scurrilous, and unsupported allegations. State
Joinder at 4, n. 2.

There is no basis for such a threat. Plaintiffs counsel is entitled to put forth

any allegation for which there is factual support.

Perhaps opposing counsel is concerned that Plaintiff is alleging a conspiracy

in which opposing counsel participated and hopes the threat will discourage
Plaintiff or his counsel from pursuing that allegation.
Later that month, [Defendant 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
interest of public safety and health. However, he warned that the Hawaii

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County prosecutors office would have to be willing to accept arrests that are
made under the authority of such a closure. On June 29, [Defendant]
Deputy Attorney General Linda Chow wrote to [Defendant Attorney General]
Chin and outlined a proposal that Wynhoff described in a later email as
potentially a real home run. Chow said she met with DLNR Division of
Forestry and Wildlife personnel and picked their brains about our dilemma
of the Mauna Kea road. The acting administrator (Scott Fretz) said that we
might be able to temporarily close or restrict access to the road under the
Game Mammal Hunting rules, she wrote.

Exhibit 14 at 2 (emphasis added).


Certainly in deciding a motion to dismiss, this Court is obligated to treat the
allegations in the Complaint as true, however much they may discomfort opposing
counsel. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hospital Bldg. Co. v.
Trustees of Rex Hosp., 425 U.S 738, 740 (1976); Love v. U.S., 915 F.2d 1242,m 1245
(9th cir. 1989).

K. State Defendants Motion Does Not Address Most of Plaintiffs
Allegations


Plaintiff alleges that the Board of Land and Natural Resources issued rules
and regulations separate from those issued by OMKM/University designed to
further the conspiracy alleged by Plaintiff. Amend. Compl. 135.

Plaintiff alleges that BLNR declared an emergency to exist based on pretexts

concocted after the planning to suppress the Protectors of the Mountain began. Ibid.
137-139, 142-150.

Plaintiff alleges that, pursuant to the declared emergency, BLNR adopted

rules and regulations having no rational relationship to any regulatory purpose

within BLNR authority. Ibid. 152-156.

Plaintiff alleges that the BLNR rules and regulations adversely impacted

spiritual practitioners. Ibid. 157-158, 160-162.

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Plaintiff alleges that Defendant Ige approved the rules in question. Ibid

165.

The State defendants do not seek to dismiss any of these allegations in their

Joinder. Plaintiff is, therefore, under no obligation to respond on these allegations.

Instead of discussing the adoption process, purpose, and content of the BLNR

rules and regulations, the State Joinder characterizes the State Defendants as only
engaged in a lawful effort to enforce Hawaii rules and laws and simply following
their sworn duty to uphold the law. State Joinder at 4 (emphasis added).

L. The Conspiracy Allegations Against State Defendants are Sufficiently
Specific and the Alleged Facts Plausibly Support the Allegation of Conspiracy


The State defendants do argue that Plaintiff cannot allege any conspiracy to
harm Plaintiff. State Joinder at 4-5.

Plaintiff addressed the conspiracy allegation earlier. Supra. at 25 - 27.

Plaintiff alleges that the development of the BLNR rules took place as part of

a conspiracy to suppress opposition to the TMT. Ibid. 71-74, 85-86, 137-140,

151, 155, 158.24

The conspiracy allegation by Plaintiff is based, in part, on the allegation that

State officials sought a means of preventing the Protectors of the Mountain from
conducting another successful blockade of the road, should the TMT decide to
resume construction.

To achieve that end, State officials inappropriately and knowingly used the

regulations meant to address hunting to mask their attempt to shut down the TMT
oppositions use of the road.

24 Arrests pursuant to the BLNR rules have taken place. County Mot. at 3.

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In a July 1 email to Hawaii Attorney General Douglas Chin, Suzanne Case,

chair of the State Department [sic]25 of Land and Natural Resources, thanked
Chin for the clear delineation of options he laid out the day before and
outlined several options for moving forward.

File a broad submittal for the July 10 meeting authorizing a DLNR
representative to conduct temporary closures and restrictions in public
hunting areas statewide (i.e. not specific to Mauna Kea) as the next step in
implementing the amended hunting rules that were just finalized.

Exhibit 14 at 1 (emphasis added).26


The fact that the amendment process for the hunting rules was just
finalized is a clear indication that the new rules were not necessary to fulfill the
statutory responsibility of the BLNR to regulate hunting. Instead, the rules sought to
address the dilemma of Mauna Kea road. Ibid. at 2.

The embedding of the new rules into the Game Mammal Hunting rules served

only to mask the true intent of the rules to regulate those protecting the Mountain
from desecration in such a way as to make them ineffective.

Plaintiffs allegations of a conspiracy are supported by factual assertions

25 The correct designation is Board of Land and Natural Resources (BLNR).
26 The DLNR Game Mammal Hunting Rules typically deal only with hunting.
Sections 183D-22 and 183D-10.5 provided the authority for the department of land
and natural resources to require payment of a fee for a hunting-related article such
as a stamp; however, since game bird hunting was an activity permitted under
chapter 183D, the department was required under 183D-3 to adopt a rule
pursuant to this section when setting the stamp fees for hunting. 117 H. 16 (App.),
175 P.3d 126.
Since the addition of two extra hunting days to each week of the hunting season
concerned "conditions for entry into game management areas, and public hunting
areas designated by the department of land and natural resources" and "open
seasons" for hunting, the express language of 183D-3 mandated that in order to
add the two weekdays for bird hunting, the department had to amend Hawaii
administrative rule 13-122-4 pursuant to chapter 91. 117 H. 16 (App.), 175 P.3d
126.

35

making the allegations plausible.

M. State Defendants are not Entitled to Qualified Immunity.

The State Defendants make a bald assertion that they are all entitled to

qualified immunity. Having failed to challenge most of Plaintiffs allegations against

them and offering only a conclusory argument regarding immunity not tied to the
facts of this case, State Joinder at 5, the immunity argument fails.

Even on the allegations of conspiracy that are challenged, Plaintiff has

identified the parts of the Amended Complaint supporting such allegations.

The Plaintiff is alleging that the State defendants declared an emergency they

knew did not exist, offered reasons for the adoption of the new rules that they knew
to be pretexts, sought to hide the unconstitutional purpose of the rules within an
inappropriately used regulatory framework, adopted rules that unconstitutionally
impacted the free exercise of faith, and engaged in punitive actions against those
towards whom the rules are truly directed.

If these allegations prove true, the actions delineated violated well

established law. Malley v. Briggs, 475 U.S. 335, 341 (1986). State defendants are,
therefore, not entitled to qualified immunity.

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IV. Conclusion

For the above and foregoing reasons the Nagata/Straney motion to dismiss

and the State Defendants motion to dismiss should be denied.

Respectfully submitted,

Dated: September 25, 2015

/s/Lanny Alan Sinkin

Lanny Alan Sinkin
Counsel for Plaintiffs

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