https://scholarspace.manoa.hawaii.edu/bitstream/10125/35797/1/Testimony%20of%20Williamson%20Chang%20with%20Appendix%20Board%20of%20Regents%20Meeeting%20April%2016%201130%20AM.pdf
Testimony and Appendix of Williamson B.C. Chang, Professor of Law, University of Hawaii at
Manoa, William S. Richardson School of Law, on “The Management of Mauna Kea and the
Mauna Kea Science Reserve,” April 16, 2015, 11:30, University of Hawaii at Hilo. Copyright
Williamson Chang, Do not Distribute or Quote without Permission Page 1
The Testimony in Person of Williamson B.C. Chang, Professor of Law, April 16, 2015
[Professor Chang will appear in person at the meeting of the Board of Regents]
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Why We Are Before DLNR---Remembering the Words of the Supreme Court of Hawaii
Williamson ChangDue Process: Hearing First, Decision After---
The first point made was that no one, not even the Department of Land and Natural Resources, should pronounce a sentence before the parties have a fair trial. DLNR was faulted by the Supreme Court for granting the TMT a construction permit — even though stayed — before conducting a contested, or public hearing, on the merits.
What if in a criminal proceeding the judge first pronounced the defendant guilty, then held a trial, telling the defendant, who was now presumed guilty, that it would be he, the defendant, who must prove his innocence? Issuing a conditional permit before hearing all the evidence is taken as a signal that the judge or hearing officer has already made up his or her mind.
It reminds me of a judge who once said, “You have the right to be heard — not the right to win.” If one is an advocate, or a party before such a judge, that kind of statement undermines all sense of hope that one will be truly heard.
No one, not even the Department of Land and Natural Resources, should pronounce a sentence before the parties have a fair trial.
The second point was the refusal of at least two of the justices to accept the implications of “incremental degradation” — the idea that the state of affairs on Mauna Kea had become so bad that it made no difference to make it worse. That would be like saying a boxer had been beaten so badly that the referee would not stop the fight. What’s one more punch in the face?
The justices were flabbergasted. Yes, the 13 telescopes on Mauna Kea were a mess, a train wreck, but why does that justify one more huge, train-wreck of a telescope?
Under that view there would be no point to environmental law — the islands are already ruined, why not build more hotels, give up more agricultural lands, allow genetically modified crops and pave over the whole of Oahu?
The environmental law movement was born from the opposite view, that it is never too late. With good laws, and hard work, one can save species from extinction and one can save wetlands, rivers, and stop pollution before it is too late. And it has worked: Species are slowly being restored, and forests are beginning to come back.
The view that the status quo is so awful that it is permissible that the future be worse is simply to give up. The engine that drives all progress is exactly the opposite view of never giving up. That is why there are protectors on Mauna Kea.
The challenge of our times is the issue of climate change. Can climate change be reversed? Not if one adheres to the doctrine that “a little more will not hurt because it is already too late” — the doctrine of incremental degradation.
Justice Must Be Seen As Well As Done
The third point was the highlight of the morning. Justice Sabrina McKenna, who had sat without speaking for a while, but whose body language expressed both extraordinary intensity and concentration, made the most memorable statement of the day: “Justice,” she stated, “must not only be done. It must also be seen to be done.” Those were remarkable words.
McKenna was addressing the larger audience gathered in the courtroom. She was also speaking to the people in all of Hawaii. She was reminding everyone of a fundamental principle applicable to the world beyond that courtroom.
She was also speaking, I believe, to the “protectors” in the Courtroom and on Mauna Kea. Courts, especially the Supreme Court, whether the United States Supreme Court or the Hawaii Supreme Court, as a rule never let on that they are influenced by current events. Yet, the non-violent, kapu aloha presence of the protectors on Mauna Kea did, I believe, have a bearing on the nature and length of the oral argument.
Opposition to TMT is a movement of the people, particularly of the young — of the new millennial generation, notable for its emphasis on “sincerity” and “integrity” of belief. There is an undeniable purity in the manner in which the protectors have made their arguments and conducted themselves.
The United States and its Constitution are founded in values that speak to sincerity: freedom of speech, religion and assembly. The strength of the opposition to TMT lies in the sincerity of the protectors. Their near four month vigil on Mauna Kea has won respect throughout the world."
Williamson Chang
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