ORDER DISMISSING AS MOOT PLAINTIFF'S COMPLAINT REGARDING THE THIRTY METER TELESCOPE ATOP THE SACRED VOLCANIC MOUNTAIN OF MAUNA KEA FILED ON AUGUST 24, 2015
LESLIE E. KOBAYASHI, District Judge.
Before the Court are Defendant Henry Yang's, in his capacity as Chair of the Board of the Thirty Meter Telescope ("TMT") Observatory Corp. ("Yang"), Motion to Dismiss Plaintiff's Complaint Regarding the Thirty Meter Telescope Atop the Sacred Volcanic Mountain of Mauna Kea Filed on August 24, 2015 ("Yang's Motion to Dismiss"),1 [filed 9/23/15 (dkt. no. 23),] and pro se Plaintiff C. Kaui Jochanan Amsterdam's ("Plaintiff") Motion for Reconsideration of Order for November 30, 2015 ("Motion for Reconsideration") [filed 12/17/15 (dkt. no. 42)]. Plaintiff did not file a memorandum in opposition to Yang's Motion to Dismiss. On December 23, 2015, Defendants the University of Hawai`i at Manoa and the University of Hawai`i at Hilo ("the University") filed a memorandum in opposition to Plaintiff's Motion for Reconsideration, and the same day Defendant Governor David Ige, in his official capacity ("the Governor"), filed a joinder in the University's memorandum. [Dkt. nos. 45, 48.]
In an entering order filed on November 17, 2015, the Court vacated the hearing on Yang's Motion to Dismiss, originally set for December 21, 2015 at 9:45 a.m. [Dkt. no. 37.] In an entering order filed on December 8, 2015 ("12/8/15 EO"), [dkt. no. 41,] the Court noted that the Hawai`i Supreme Court had recently vacated the permit that allowed for the TMT's construction. See Mauna Kea Ainana Hou v. Bd. of Land & Nat. Res., No. SCAP-14-0000873, 2015 WL 7760324 (Hawai`i Dec. 2, 2015). The Court directed Plaintiff, Yang, the Governor, and Defendant Suzanne Case, in her official capacity as Chair of the Board of Land and Natural Resources ("Chairperson Case"), to file memoranda addressing whether or not, given the Hawai`i Supreme Court's decision in Mauna Kea, the instant case is now moot. The Governor and Chairperson Case filed their joint memorandum on December 21, 2015 ("Governor's Memorandum"), Plaintiff filed his memorandum on December 22, 2015 ("Plaintiff's Memorandum"), and Yang filed his memorandum on December 23, 2015 ("Yang's Memorandum"). [Dkt. nos. 43, 46, 44.]
The Court finds these matters suitable for disposition without a hearing pursuant to Rule 7.2(d) of the Local Rules of Practice of the United States District Court for the District of Hawai`i ("Local Rules"). After careful consideration of the motions, memoranda, and the relevant legal authority, the Court FINDS that this case is MOOT, and CONCLUDES that it must be DISMISSED. Yang's Motion to Dismiss and the Motion for Reconsideration are DENIED AS MOOT.
BACKGROUND
On August 24, 2015, Plaintiff filed his Complaint Regarding the Thirty Meter Telescope Atop the Sacred Volcanic Mountain of Mauna Kea ("Complaint"). [Dkt. no. 1.] On November 30, 2015, this Court filed an Order: (1) Granting Defendant Governor David Ige's Motion to Dismiss Complaint Filed August 24, 2015; (2) Granting Defendant Suzanne Case in her Official Capacity as Chair of the Board of Land and Natural Resources Joinder in Defendant Governor David Ige's Motion to Dismiss Complaint Filed August 24, 2015; and (3) Granting Defendants University of Hawaii at Hilo and University of Hawaii at Manoa's Motion to Dismiss Plaintiff's "Complaint Regarding the Thirty Meter Telescope Atop the Sacred Volcanic Mountain of Mauna Kea," Filed on August 24, 2015 ("11/30/15 Order"). [Dkt. no. 39.] The 11/30/15 Order sets forth the background in this case, and the Court will only repeat the information that is relevant to the instant Order. In the 11/30/15 Order, the Court found that Plaintiff lacks standing to bring suit. Additionally, the Court ruled that: Plaintiff's claim under article XII, section 7 of the Hawai`i State Constitution; "Plaintiff's claims against the State of Hawai`i, associated state agencies, the Board of Land and Natural Resources, and the Department of Land and Natural Resources" ("the state and state agencies"); and Plaintiff's claims against the University were all barred by the Eleventh Amendment. [11/30/15 Order at 15.]
Plaintiff's Hawai`i State Constitution claim, claims against the state and state agencies, and claims against the University were dismissed with prejudice. Plaintiff's claims against the Governor and Chairperson Case were dismissed without prejudice. The Court noted that "[i]t is arguably possible that Plaintiff could amend his Complaint to state a claim against the Governor and Chairperson Case over which this Court has jurisdiction." [Id. at 16.] Because Yang's Motion to Dismiss was still pending when the Court issued the 11/30/15 Order, the Court refrained from giving Plaintiff a deadline to file an amended complaint.
In addition to Yang, the remaining defendants named in the Complaint are representatives of the nations of China, India, Japan, Canada, and the United States ("Country Representatives").
STANDARD
The Ninth Circuit has stated:
It is an inexorable command of the United States Constitution that the federal courts confine themselves to deciding actual cases and controversies. See U.S. CONST. art. III, § 2, cl. 1. For a case to fall within the parameters of our limited judicial power, "it is not enough that there may have been a live case or controversy when the case was decided by the court whose judgment we are reviewing." Burke v. Barnes, 479 U.S. 361, 363, 107 S.Ct. 734, 93 L. Ed. 2d 732 (1987). Rather, Article III requires that a live controversy persist throughout all stages of the litigation. See Steffel v. Thompson, 415 U.S. 452, 459 n.10, 94 S.Ct. 1209, 39 L. Ed. 2d 505 (1974) ("an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed"). Where this condition is not met, the case has become moot, and its resolution is no longer within our constitutional purview. See Foster v. Carson, 347 F.3d 742 (9th Cir. 2003) ("We do not have the constitutional authority to decide moot cases."). Because "[m]ootness is a jurisdictional issue, id. at 745, we are obliged to raise it sua sponte. See Demery v. Arpaio, 378 F.3d 1020, 1025 (9th Cir. 2004).
Gator.com Corp. v. L.L. Bean, Inc., 398 F.3d 1125, 1128-29 (9th Cir. 2005) (alterations in Gator.com).
"There are, however, four major exceptions to the mootness doctrine, for (1) collateral legal consequences; (2) wrongs capable of repetition yet evading review; (3) voluntary cessation; and (4) class actions where the named party ceases to represent the class." In re Burrell, 415 F.3d 994, 998 (9th Cir. 2005) (citations omitted).
DISCUSSION
In Mauna Kea, the Hawai`i Supreme Court held:
Quite simply, the Board [of Land and Natural Resources ("Board")] put the cart before the horse when it issued the permit before the request for a contested case hearing was resolved and the hearing was held. Accordingly, the permit cannot stand. We therefore vacate the judgment of the circuit court and the permit issued by the Board, and remand so that a contested case hearing can be conducted before the Board or a new hearing officer, or for other proceedings consistent with this opinion.
2015 WL 7760324, at *2 (footnote omitted).
In the Complaint, Plaintiff states:
The advancement of the TMT Project and subsequent restrictive and prohibitive treatment and arrests of Native Hawaiians by the Defendants are in violation of the State of Hawaii's responsibilities as mandated by the Hawaii Admission Act of 1959, the Constitution of the State of Hawaii, and Congressional Acts of the United States Congress. Accordingly, the Plaintiff claims as violative of such mandated obligations the actions of the Defendants in advancing the TMT Project and asks the Federal Court to enjoin such actions.
[Complaint at 3.] It is clear to the Court that there is no live case or controversy in the instant matter. Plaintiff sought to enjoin the construction of the TMT, and the Hawai`i Supreme Court vacated the permit necessary for the project's construction.
Plaintiff is proceeding pro se, and the Court must liberally construe his filings. See, e.g., Pregana v. CitiMortgage, Inc., Civil No. 14-00226 DKW-KSC, 2015 WL 196667, at *2 (D. Hawai`i Apr. 30, 2015) ("The Court liberally construes the [plaintiffs'] filings because they are proceeding pro se." (citing Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987))). Even construing it liberally, Plaintiff's Memorandum does not establish that there is a remaining case or controversy. Plaintiff argues that this case is not moot because, inter alia, the Hawai`i Supreme Court "did not terminate the TMT Project" and that "the Project can still advance." [Plaintiff's Mem. at 4.] Plaintiff admits, however, that "the permit used by the TMT Project could not stand and the Project was stopped." [Id. at 2.] To the extent that Plaintiff argues that this case meets one of the exceptions to the mootness doctrine, he is incorrect. Plaintiff has not alleged any secondary or collateral injury, nor has he articulated an ongoing injury that could be classified as such. Moreover, Defendants did not voluntarily cease construction of the TMT, and this is not a class action. Finally, this is not a wrong capable of repetition yet evading review. There is no valid permit allowing for the construction of the TMT, and, given the successful challenge in state court, it is clear that this is not an instance in which a future injury would cease to exist before it could be litigated.2 See Madison v. Tulalip Tribes of Wash., 163 F. App'x 499, 500 (9th Cir. 2006) ("Because there is no longer a live controversy in this case, and because there will be adequate time to challenge any future permit coverage, we dismiss this case as moot.").
Plaintiff states that, since the hearing on his motion for an immediate temporary injunction, [dkt. nos. 2, 3,] where he was "encouraged by the Honorable Court," he "has been endeavoring to advance a win-win outcome for the parties and matters involved." [Plaintiff's Mem. at 2.] While the Court commends Plaintiff's commitment to meet with other parties and his work to find a resolution, Plaintiff's efforts do not in and of themselves create a case or controversy.
The Court FINDS that this case is MOOT, and CONCLUDES that the remaining claims against Yang and the Country Representatives must be DISMISSED. Yang's Motion to Dismiss3 and the Motion for Reconsideration are DENIED AS MOOT.
CONCLUSION
On the basis of the foregoing, the Court FINDS that this case is MOOT and CONCLUDES that it must be DISMISSED. Yang's Motion to Dismiss, filed on September 23, 2015, and Plaintiff's Motion for Reconsideration, filed on December 17, 2015, are HEREBY DENIED AS MOOT.
There being no remaining claims, the Court DIRECTS the Clerk's Office to enter final judgment and close this case on February 3, 2016, unless Plaintiff files a motion for reconsideration of this Order by February 1, 2016.
IT IS SO ORDERED.
