Photo: Mauna Kea rises above the clouds
  1. Act 255 establishing the Mauna Kea Stewardship and Oversight Authority (MKSOA) was signed into law in July 2022. Why is the Office of Hawaiian Affairs (OHA) only now filing a lawsuit challenging its legality and constitutionality?

    OHA has long-standing concerns about the legality and constitutionality of Act 255 and testified against the bill before it was signed into law by then-Gov. David Ige.

    Specifically, OHA views Act 255 and the establishment of the MKSOA as an effort by the State of Hawaiʻi to circumvent accountability for more than 50 years of mismanagement of Mauna Kea and prevent OHA’s current lawsuit against the state Department of Land and Natural Resources (DLNR) and the University of Hawaiʻi (UH) for its blatant neglect of the mauna.

    OHA’s 2017 lawsuit against the State of Hawaiʻi for mismanagement of Mauna Kea recently received a trial date in July 2024, thus the urgency in filing a lawsuit challenging Act 255. Act 255 is a strategic attempt by the state to stop that effort.

  2. Has OHA previously expressed its opposition to Act 255 and the MKSOA?

    Yes, OHA expressed serious concerns when the legislation was being heard and testified against Act 255 before it was signed into law. Filing of the January 2024 lawsuit was the culmination of fruitless discussions in the political arena challenging Act 255.

  3. Why doesn’t OHA have a seat on MKSOA?

    During the legislative process for Act 255, OHA was named as an entity that would have a seat on the MKSOA in multiple drafts. It’s important to note that OHA was removed at the last minute as a member of the proposed Authority during conference committee. Thus, it left OHA, the only constitutionally mandated agency that represents the wellbeing of Native Hawaiians and the recipient of ceded land revenues, without a seat at the table to weigh in on the management and stewardship of the mauna.

  4. What are OHA’s specific concerns about MKSOA?

    OHA has two key concerns. First, Act 255 violates the “contract clause” of the United States Constitution, in that the legislation exonerates the government agencies that have legal responsibilities in the management of the Mauna Kea lands. By establishing MKSOA, Act 255 creates a new trustee and releases the state and UH from all obligations regarding past and future mismanagement of Mauna Kea lands.

    Secondly, the MKSOA created by Act 255 consists of trustees, some of whom, have obvious conflicts of interest that jeopardize their ability to serve all beneficiaries of the ceded lands trust impartially.

  5. MKSOA representatives include respected Native Hawaiians, several of whom were leaders of the ʻAʻole TMT movement. Doesn’t OHA trust them?

    OHA has tremendous respect for the Native Hawaiians seated on the MKSOA but contends that the tenure of all representatives is not legal under the law. OHA’s position is that Act 255 is flawed and illegal, regardless of the member composition.

    OHA’s complaint via the lawsuit relates solely to the legality and constitutionality of Act 255, as well as to language in the Act that specifically empowers the MKSOA to “develop, negotiate and execute agreements that promote astronomy.” Act 255 is silent about the rights of Native Hawaiians to protect the cultural and religious importance of Mauna Kea.

  6. If the MKSOA is repealed, how does OHA want the mauna managed?

    OHA advocates for the best interest of its Native Hawaiian beneficiaries. In this case, that means ending the attempt by the legislature to avoid the state’s responsibility to properly manage the Mauna Kea lands in accordance with its trust responsibilities. OHA is calling for Court oversight of DLNR and UH in their stewardship and management of Mauna Kea to end the state’s more than 50-year well-documented mismanagement of Mauna Kea, as well as for the development of a well-managed, fair management plan that cures the mismanagement of the past. The management plan must be fair and impartial. It cannot prioritize astronomy over Hawaiian rights.

  7. How would the repeal of the MKSOA authority assist in protecting the trust relationship between the state and Native Hawaiians?

    The MKSOA’s priority and purpose is the privatization of the Mauna Kea lands for the benefit of the University of Hawaiʻi’s astronomy program while providing no explicit protection of Native Hawaiian rights.

  8. OHA contends that the establishment of MKSOA lets UH and the DLNR “off the hook” for their mismanagement of Mauna Kea. What are some of the ramifications of these entities being held accountable, and is it possible to collect back damages from the state?

    Better management of Mauna Kea requires more than absolving the state and UH of their past wrongdoing and ensuring that future management of the mauna balances the interests of Native Hawaiian cultural practices and astronomy. In terms of consequences, OHA has called for “prospective injunctive relief” to prevent future mismanagement of our trust lands at Mauna Kea and for the restoration of the trust to its natural and cultural state.

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