January 24, 2022

Environmental, Natural Resources, & Energy Law Blog

Personification of the Mauna - Lockey White

Poliahu[1] is present from a distance. Up close she is harder to see. The mountain itself is hers and is her. It is also an embodiment of Papa, the Earth Mother goddess who created all existence along with Wakea, the Sky Father. Together the two met, lived, and bred on the summit of Mauna a Wakea[2] giving birth to all life on Earth.[3] Even the Kumulipo, the Hawaiian creation chant that forms the backdrop to Hawaiian spiritual beliefs, has translations that refer to the “fear of the mountain top,” “the kualono where gods assemble”.[4] The tallest summit is sacred because it is where earth meets sky. It is where gods live.

The tallest mountain in Hawaii, Mauna a Wakea, does not only have Wakea, the great sky father, in its name. It is a sacred embodiment of divine personality. For many, it’s obvious! The outline of a massive female body screams Earth Goddess, voluptuous and curvy, each Pu’u (hill) suggesting fertility. For some it is hard not to see her just the way she is: lying there, outstretched… giving.[5] Her breasts are the Pu’u, her summit is sacred. Everyone on island knows her as she dominates Hawaii island. The respectful say a little prayer before they go to play in the snow and bring an offering for the shrine at the entry point below[6].

An ahu (shrine or altar) made of rocks at the base of the road that goes up to the visitors center on Mauna Kea. Credit: Kent Nishimura/ New York Times.

The only access road providing access to this sacred area is situated on Hawaiian Homelands,[7] providing the only access to HER. The sacred and beautiful Poli’ahu. The goddess of ice and snow[8], the sister of Pele who is the more well-known goddess of hot lava. Poli’ahu is a year-round resident of Mauna Kea, one of the world’s largest and most significant mountains which makes up most of the island of Hawaii.[9]

 

The island itself is alive.[10] It does not take much to feel it. The buzz beneath one’s feet, the moving and shaking of the near constant earthquakes[11], the oozing lava as it ebbs and flows with the sea. This is a growing and living landmass, closer to the Earth’s mantle than anywhere else, emerging above Gaia’s own hotspot.[12] Many newcomers and established families alike agree: this place is special. This island is alive. The mountain itself has… feelings. Is that enough to help it gain legal protection? Can the mountain itself have a seat at the table when humans are deciding its fate?

Nonhumans have historically enjoyed the status of legal subjects in various forms of customary law. [13] Ever since Roman times the law has recognized both “persona natura” (natural persons) and “persona ficta” (fictional persons)[14]. Natural persons refer to human beings. Each human has certain legal rights automatically which expand upon reaching adulthood. A fictional person or “juristic person” is an “entity capable of holding rights, duties and capacities… is not a human being, but one which society has decided to recognize as a ‘subject of rights’ and obligations”.[15] Juristic personhood is bestowed upon incorporation of a business or trust. This incorporation gives it many or the same rights and protections enjoyed by humans, including the right to sue.

The idea of granting legal personhood to Mauna Kea thus has roots in established precedent. Juristic personhood is a legal concept that comes from “in jus gentium” which formed the basis of public trusts during the Roman empire.[16] The concept has expanded since then to include many things that are not humans. Even though they may never be human, they become “persons” legally. When it comes to religious and sacred things, the idea that something considered sacred belongs to more than just the private property holder and must be given its own rights independent of who “owns” it is not a new concept. As a common law concept, judges in India recognized some sacred “enspirited idols” as having legal status in 1925[17] and have granted them the same legal rights as humans since the nineteenth century.[18]

It is accepted that items of commerce can have the rights of legal persons. This includes corporations and at times even boats. In some ways in rem jurisdiction gives real property a place at the table in a lawsuit until its owner can be identified and summoned. More recently, however, some jurisdictions have begun to recognize certain spiritual-natural entities as legal persons, making sacred rivers and mountains ‘juristic persons’ by statute or legislation. One such bill was pending in Hawaii for Mauna Kea this year prior to being killed in a committee. This vision may seem unique and radical but it is not. Personification may not, by itself, guarantee that the Mauna Kea summit area is protected from further development but it certainly helps to establish a new pathway via litigation for protectors of Mauna Kea to assert a real voice and true guardianship in the area. Personification is one solution to the Mauna Kea TMT controversy that makes legal sense, has ancient roots, and could lead to creative solutions for mountain stewardship that bolsters existing efforts and is accepted by all sides.

There is a critical mass emerging in Hawaii where neo-pagan[19] newcomers often agree with the ancient Hawaiian religion[20] which makes special rocks, mountains, and animals into respected Gods and Goddesses. Spiritually, if not legally, when an item or feature is considered a God or Goddess, it has become personified. Such personification gives ancient roots to a new and cutting-edge concept in law: environmental personhood.[21] Indigenous knowledge in Hawaii is real and alive. And indigenous knowledge, morals, customs, laws, and values are rooted in animistic and pagan spirituality.[22] In this worldview the Earth and its creatures are Gods and Goddesses and/or spirit messengers with inherent value and are not to be just used and ignored. While the law may not be ready to recognize any thing in particular as a God or a Goddess –or even having inherent value beyond its usefulness to humans– one way to recognize a place or an animal as special is to grant them recognition in the form of legal personhood.[23] After all, if a corporation is considered a “person” under the eyes of the law, ad a boat can be considered a person under the eyes of the law[24], then can’t a mountain that is also a Goddess?[25]

Many countries and tribes have begun to recognize legal personhood for nonhumans beyond the corporation context, including animals and ecosystems.[26] In the article “Juristic Personhood for Sacred Natural Sites: A Potential Means for Protecting Nature” the authors Studley & Bleisch argue that such a regime for personhood “may be an effective tactic for safeguarding enspirited[27] sacred natural sites, because it conceptually resonates with the animistic world-view and relational ontologies of many Indigenous peoples.”[28]

In Hawaii the dispute over the development of Mauna Kea –which is a huge mountain held sacred by many Hawaiians and non-Hawaiian neo pagans– is one place where the emerging new legal regime of environmental personhood could be tested.[29] Ironically, much of what is already happening in Hawaii in relation to this controversy is what needs to happen to make this a reality.[30]

Most people in Hawaii know that the top of Mauna Kea is zoned as a conservation area. However it is not the conservation ethic but the spiritual value of the mountain that is driving the massive protests against further development at the summit. The summit of Mauna Kea is considered sacred by many people in Hawaii and elsewhere.[31] This spiritual belief may have the end result of conserving the resource held sacred but it is not the primary motivation. It is much more personal than that! This is why Mauna Kea is more than a mountain. She is already a person, she already has protectors, people already believe in her. Granting her legal personhood would merely be the courts and/or legislature finally recognizing what already IS. She is there and she has power. Legal personhood will finally give her a voice.

While the concept of environmental personhood as set forth in the environmental law classic “Do Trees Have Standing”[32] can be too broad for practical application at times[33], adding the sacred site component to the concept of environmental personhood works very well to further both conservation and indigenous values. In the Hawaiian religion, even rocks can be Gods and must be treated with respect.[34] Modern environmental law in the United States usually does not take into account the indigenous /pagan religions and their personification of nature.[35] Through an advanced system for implementing environmental personhood, it can.

The fight to develop the thirty-meter telescope (TMT) on Mauna Kea does not fit normal legal theories and is at an impasse.[36] The Courts say development can happen and appeals have been exhausted.[37] The people who literally stand in the way of the development have no more legal recourse. Many say that they are willing to die for their Mauna.[38] But what of the Mauna herself? Can a mountain as famous and revered as Mauna Kea also be a person? Can she have standing and a voice and if so, who gets to be her mouthpiece?[39] What does the mountain want? Some kahu (Hawaiian priests) and purported members of the Poli’ahu family insist she, Poli’ahu and the mountain herself, have no problem with hosting the big telescope.[40] It is not a given that personhood would halt development but it would provide all who wish to take on the responsibility of being a protector and guardian of the mountain with a pathways to do so legally.

The recently proposed legislation on the legal personhood of Mauna Kea does not set forth a formula for who can be the mountain’s mouthpiece but it does create gatekeepers in the form of the mandatory membership structure of the proposed Mauna Kea legal personhood working group.[41] As proposed the institutional representatives outweigh the people who may arguably have a direct connection with the Mauna herself. Is it enough that whoever ends up being the caretaker of Mauna Kea (currently University of Hawaii) would automatically inherit fiduciary duties towards the mountain akin to a duty a guardian would have over an incapacitated person? By giving Mauna Kea legal personhood, those in charge of her well-being have heightened personal liability in the event that they violate their fiduciary duty to always act for the highest and best good of the Mountain as if she were a human legal ward.

By surveying how legal personhood actually works in other jurisdictions, this analysis explores how it could be applied to Mauna Kea in Hawaii, specifically in relation to development of TMT.[42] Personhood, itself, is a limited concept in common law based on, in part, the concept of public trust.[43] However, even a public trust resource is managed for the benefit of humans and not provided the right to sue for its own benefit.[44] Environmental personhood is, theoretically, an unlimited concept in statute. Because common law in the U.S. is informed by what has happened historically in England primarily, it is invariably subject to extreme cultural bias that tends to work against indigenous values and beliefs. The concept of nonhuman natural features being legal persons with inherent value and rights for their own sake is something that is new to European and white American thought and that is why there exists little established precedent for it.

When and if the people of Hawaii decide that Mauna Kea is a person entitled to similar legal protections granted to humans under the care of others, there will exist an entirely new basis for legal challenges to the TMT project. These new theories of protection based on legal personhood for sacred areas “have been articulated in courts and legislatures under the aegis of legal rights for ‘Mother Earth’ in Ecuador and Bolivia, juristic personhood in New Zealand, India and Colombia, and the recognition of sacred natural sites in Africa.”[45]

In 2008, Ecuador declared in its constitution that nature is a legal entity, becoming the first in the world to do so. Nature is identified in the Ecuadorian constitution as “Pachamama”, an earth-goddess/mother goddess.[46] Articles 10 and 71–74 of the Ecuadorian Constitution “recognizes the inalienable rights of ecosystems; gives individuals the authority to petition on behalf of ecosystems, and requires the government to remedy violations of Pachamama”.[47]

Similar to Ecuador, in 2010 Bolivia amended its constitution to protect natural ecosystems,[48] redefine mineral deposits as ‘blessings’ and create ‘rights for nature’ which include “the right to life and to exist; the right to continue vital cycles and processes free from human alteration; the right to pure water and clean air; the right to ecological balance; the right to the effective and opportune restoration of life systems affected by direct or indirect human activities, and the right for preservation of Mother Earth and any of its components with regards to toxic and radioactive waste generated by human activities”. Interestingly similar to the proposed Mauna Kea personification legislation, the government of Bolivia also appointed an ombudsman to defend or represent Mother Earth.

Perhaps the most well-known international example of environmental personhood is the Te Awa Tupua (Whanganui River Claims Settlement) Act of 2017 enacted by the New Zealand parliament, which was the first piece of legislation to declare a river to be a legal person.[49] Several other similar acts have also been adopted to protect rivers in other countries including India and Ecuador.[50]

Informed by Maori culture, which is closely linked to Hawaiian and Polynesian culture generally, the Te Awa Tupua Act gave the Whanganui River the rights, duties, and powers of a legal person, including the ability to sue. As could be the case with a similar act for Mauna Kea in Hawaii, the Te Awa Tupua (Whanganui River Claims Settlement) Act of 2017 was aimed at improving the relationship between the government and its indigenous people through the “enshrinement of the rights of nature associated with the culturally significant Whanganui River into law”.

As could be the case with a similar law directed at Mauna Kea in Hawaii, Te Awa Tupua was the culmination of decades of efforts by the local leaders to redress wrongs of the past related to sovereignty over the land and treatment of nature. Just as the Te Awa Tupua recognizes the intrinsic values of the river, any legislation for legal personhood of Mauna Kea should also recognize the intrinsic value of the mountain itself even if it has no development at all.

As with the Whanganui River in Māori cosmology, Mauna Kea is part of Hawaiian cosmology. However, to the extent that the permits for development of the TMT on top of Mauna Kea have already been granted and approved by the highest court in the state, even a new law granting Mauna Kea legal personhood modelled after the Te Awa Tupua Act will not stop TMT. Why? Because the Te Awa Tupua, while giving the river new rights, does not “reverse pre-existing laws, including the consent granting… rights to divert water for hydroelectric power until 2039.”[51]

Although a legislative fix based on Mauna Kea becoming legally personified might seem politically attractive, legally there is still no precedent in the United States on how to do this. In February 2019, the citizens of Toledo, Ohio voted on the Lake Erie Bill of Rights (LEBOR), which granted the lake personhood-like rights to exist and flourish.[52] However, the day after the legislation was passed, a lawsuit was filed that argued LEBOR violated a farm’s constitutional rights and LEBOR was struck down as unconstitutional. Drewes Farms P’ship v. City of Toledo, 441 F. Supp. 3d 551 (N.D. Ohio 2020).[53]

In striking down the law the Court found that LEBOR violated due process under the U.S. Constitution because the language of LEBOR was too vague and does not provide clear guidance on to whom the law applies and when such application is triggered.

The Drewes Farms court noted that it is essential for any law’s legality that it can be understood and followed by “persons of common intelligence.”[54] To the extent the concept of legal personhood as applied to nature is a new concept, it cannot be assumed that the regulated party is aware of the nature and extent of the regulation. The Lake Eerie law included the right of the lake to “exist, flourish, and naturally evolve” and the “right to a clean and healthy environment” which the court found, along with the rest of the bill, impermissibly vague.

The Drewes Farms court highlighted a lack of clarity in terms of what conduct might infringe on the rights of Lake Erie and its watershed; how would one renders a decision on this; as well as what determines the line between a clean and healthy environment and one that is unclean and unhealthy. If the Lake Eerie effort is to have any value, perhaps it is in the hope that future lawmakers now have a better sense of what level of specificity is necessary for the courts to uphold this radical yet ancient approach to regulating humanity’s impact on the most revered natural bodies.

To the extent an entire section of the Hawaii Revised Statutes is devoted to how court-appointed guardianship and conservatorships should be administered and how fiduciaries should act in relation to beneficiaries perhaps such specificity would not be necessary to establish and execute a law respecting Mauna Kea’s environmental personhood. The existing gap between human and non-human wards under the law can be easily filled with broad definitions and cross reference to existing laws and established principles of guardianship.

The fact that the Mauna Kea legal personhood proposed legislation was killed in committee shows that it is not certain that the political will exists currently to formally write the concept into law. According to Studley and Bleisch, legal recognition of a sacred natural site would work best where it complements a “community-based customary ritual protection that is already in place”.[55] In Hawaii both formal and informal community-based protections and consultations exist for the conservation area at the Mauna Kea summit and for the mountain generally. Under juristic personhood nonhuman inhabitants of Mauna Kea and/or the mountain itself could be granted standing as plaintiffs and represented by a guardian, agent or ‘next friend’ without politicians needing to gather the political will to pass legislation doing the same.

The judge-made law approach has had most traction in India where precedent exists for religious idols since 1925. In March 2017, the High Court of Uttarakhand in India[56] declared that the: “Ganga and Yamuna Rivers and all their (115) tributaries and streams…. are juristic persons with all the corresponding rights duties and liabilities of a living person” (Clause 19). The court then appointed three officials to act as legal custodians who would be responsible for “conserving and protecting the rivers and their tributaries”.[57] The court also ordered a “management board” be established. The court found that it had authority to act because it was necessary since both rivers were “losing their very existence” (Clause 10) and both “are sacred and revered and presided over by goddesses” (Clause 11). The court later expanded its judgment by revisiting prior failed cases[58] and declared that:

We, by invoking our parents patriae jurisdiction, declare glaciers including Gangotri & Yamunotri, rivers, streams, rivulets, lakes, air, meadows, dales, jungles, forests, wetlands, grasslands, springs and waterfalls, legal entity/ legal person/juristic person/juridical person/ moral person/artificial person having the status of a legal person, with all corresponding rights, duties and liabilities of a living person, in order to preserve and conserve them. They are also accorded the rights akin to fundamental rights/ legal rights (Clause 2).

The above judgment goes on to quote “Secret Abode of Fireflies”[59] which regards the sacredness of mountains as the abode of deities and the ‘rights for nature’. This sweeping ruling did not stick. The Supreme Court of India later ‘stayed’ the landmark judgment that granted juristic personhood to the Ganga and Yamuna Rivers (and their tributaries)[60].

While the jurisprudence in this area is still very much evolving, one need not look as far as India or even Ecuador to see how these concepts can and do very much apply to Hawaii. In Hawaiian court cases[61] a descendent of the Kanaka Maoli (native Hawaiians) wrote an affidavit that was accepted by the court which granted him power of attorney to act and speak on behalf of a spirit named Mo’oinanea that inhabits Mauna Kea. Standing for Mo’oinanea was ultimately denied, however, due to the fact that Mo’oinanea was not a human.

While the concepts discussed in this analysis are still very new and currently being tested by the courts and communities, it is important to understand that the roots are ancient. Indigenous communities worldwide historically managed their resources in a much more respectful and sustainable manner than modern civilization. It makes sense to use this cultural and spiritual backdrop as a guide for stewardship. Through both legislative process and judicial rulings based on common law Mauna Kea may still have a chance to have its voice heard and considered in relation to the massive telescope development called TMT.

 

[1] See Heidi Nicholls & Matt Ito, “Kū Kiaʻi Mauna: Mauna Kea, Protecting the Sacred, and the also https://religionlab.virginia.edu/projects/ku-kia%CA%BBi-mauna-mauna-kea-protecting-the-sacred-and-the-thirty-meter-telescope/ (accessed 12/8/2021). Poliahu is the Hawaiian goddess that lives on the top of Mauna Kea on the Island of Hawaii. Some say that the mountain itself embodies her. Other legends explain that Papahānaumoku, also known as “Papa” for short, is the Earth Mother Goddess of the Hawaiian religion that is the mountain itself and she meet the sky father Wakea at the summit of Mauna Kea to birth the islands. See: “CULTURE, HAWAII ISLAND 2016 SEP–OCT MYTHS AND LEGENDS OF MAUNA KEA” By Leilehua Yuen, Keola Magazine, at http://www.ifa.hawaii.edu/hilo/Hilo_Outreach/Gods%20goddesses.pdf (accessed 11/7/2021) http://www.ifa.hawaii.edu/hilo/Hilo_Outreach/Gods%20goddesses.pdf and https://en-academic.com/dic.nsf/enwiki/261968

[2] more commonly known as Mauna Kea and sometimes also referred to as Mauna O Wakea. The name Mauna Kea translates to white mountain and is simply descriptive. It is short for the true name of the mountain “Mauna a Wākea,” which translates to “the mountain of Wākea” who is one of the progenitors of the Hawaiian people. Maunakea is believed to connect the land to the heavens. Source: University of Hawaii Institute for Astronomy newsletter Na Kilo Hoku. See: https://www2.ifa.hawaii.edu/newsletters/article.cfm?a=690&n=55 (accessed 12/9/2021)

[3] See The Kumulipo, A Hawaiian Creation Chant translated and edited with commentary by Martha Warren Beckwith (1951) found at http://www.ulukau.org/elib/cgi-bin/library?e=d-0beckwit2-000Sec%E2%80%9411haw-50-20-frameset-book%E2%80%941-010escapewin&a=d&d=D0&toc=0 (Accessed 12/8/2021).

[4] Id.

[5] For visual depictions of Poli’ahu as Mauna Kea see: https://volcanoartcenter.org/shop/prints/herb-kane/herb-kane-poster-poliahu-snow-goddess/ (Herb Kane poster, “Poli’ahu Snow Goddess” ) and https://www.lindarowellstevens.com/poliahu (Linda Rowell Stevens painting, “Poliahu”)

[6] “Under Hawaii’s Starriest Skies, a Fight Over Sacred Ground” By Dennis Overbye

Oct. 3, 2016, New York Times, https://www.nytimes.com/2016/10/04/science/hawaii-thirty-meter-telescope-mauna-kea.html

[7] For more information about the access road and its relation to the dispute over Mauna Kea see: Hawaiian Homes Beneficiaries Sue State Over Mauna Kea Access Road, By Kuʻuwehi Hiraishi/ Hawaii Public Radio, February 14, 2020 at https://www.hawaiipublicradio.org/local-news/2020-02-14/hawaiian-homes-beneficiaries-sue-state-over-mauna-kea-access-road (accessed November 7, 2021)

[8] See Hawaii department of Land and Natural Resources Mauna Kea Public Testimony and Comment files at https://dlnr.hawaii.gov/mk/files/2016/10/TIO-EXH-C-26.pdf page 5 Written Direct Testimony of E. Kalani Flores . [Poliahu - “ka wahine i ke kapa hau”; (the woman in the mantel of snow), is at times referred to as an akua wahine (goddess). She is a part of Mauna a Wakea (Mauna Kea mountain) and creates the rain, snow, hail, and sleet on this mountain. She serves as caretaker and guardian for the mountain and grants permission to certain spirits coming to the mountain..]

[9] For a good discussion of Mauna Kea and the controversy surrounding its development from the native Hawaiian perspective see generally the Office of Hawaiian Affairs (OHA) Mauna Kea Website which also has links to the most recent legal rulings, pleadings and developments at: https://www.oha.org/maunakea/ .

[10] See, e.g. “Ask an Earth Scientist” response by Prof. Ken Rubin, University of Hawaii Dept. of Geology and Geophysics regarding the Gaia Hypothesis at https://www.soest.hawaii.edu/GG/ASK/gaia.html (accessed Nov. 7, 2021) and https://scottmeadphotography.com/date-madame-pele/ (“[T]he Big Island is alive and growing: Tūtū Pele, the Fire Goddess of Hawaiian religion — the deity of fire, lightning, wind and volcanoes, and more importantly, the creator of the Hawaiian Islands. With her fiery passion, she is still creating land on a daily basis, flowing from Pu’uo’o cone through lava tubes to the Pacific – an eight-mile journey.”)

[11] For real-time mapping of the near-constant earthquakes on Hawaii Island see the Hawaii Volcanoes Observatory website at: https://www.usgs.gov/observatories/hawaiian-volcano-observatory/earthquakes (accessed 11/7/2021 - in the past 24 hours there were 17 earthquakes). Hawaii Island has been in a near constant state of volcanic eruption for over thirty years.

[12] See “A Chain of Islands: Hawaiian Hot Spot” by National Geographic, July 30, 2020 at https://www.nationalgeographic.org/article/chain-islands-hawaiian-hot-spot/ (accessed Nov. 7, 2021) (“The Hawaiian Islands were formed by a volcanic hot spot, an upwelling plume of magma, that creates new islands as the Pacific Plate moves over it.”)

[13] JURISTIC PERSONHOOD FOR SACRED NATURAL SITES: A POTENTIAL MEANS FOR PROTECTING NATURE John Studley1* and William V. Bleisch, PARKS VOL 24.1 MAY 2018 found at https://parksjournal.com/wp-content/uploads/2018/06/PARKS-24.1-Studley_10.2305IUCN.CH_.2018.PARKS-24-1JS.en_.pdf ; see also “Indigenous Sacred Natural Sites and Spiritual Governance” by John Studley, c. 2019 Routledge found at: https://www.researchgate.net/profile/John-Studley-2/publication/330585372_Indigenous_Sacred_Natural_Sites_and_Spiritual_Governance_The_Legal_Case_for_Juristic_Personhood/links/5e3438d392851c7f7f1095df/Indigenous-Sacred-Natural-Sites-and-Spiritual-Governance-The-Legal-Case-for-Juristic-Personhood.pdf

[14] which were later known as “juristic persons”

[15] Id at FN 15. (“These ‘rights, duties and obligations’ may include the capacity to sue or be sued, own or dispose of property, seek judicial relief, receive legacies, gifts and inheritances, incur debt, enter into contracts and comply with the laws of the state.”)

[16] Id.

[17] Id. at FN 15 (“In 1925 colonial judges in India conferred juristic personhood on temples, idols and deities contingent upon the enspiriting of an idol and Salmond’s definition of ‘person’ (1913). Importantly, an idol (or a temple) does not develop into a juristic person until it is enspirited during a Pran Pratishtha ceremony. An enspirited idol of Radha Shyamsunderji (similar to the one above) was recognized as a “jurisic person” in 1925 (Mullick v Mullick), Privy Council, Bombay High Court. With permission of Rrahul Yadav www.yadavhistory.com.”)

[18] Id.

[19] See, E.g. “Signs of Neopagan Support for Mauna Kea” by Avnas Mars (Amy Marsh, EdD.) July 22, 2019 at https://ladyofthelake.blog/2019/07/22/signs-of-neopagan-support-for-mauna-kea/ (accessed Nov. 7, 2021).

[20] The assumption in the Hawaiian religion of an attitude of deep respect and reverence for natural features and places in Hawaii is well recognized, even officially by the United States National Park Service on its Hawaii website NPS.gov section on Hawaiian Heritage & Culture/Religion, Beliefs & Spirituality. See: https://www.nps.gov/locations/hawaii/religion.htm (“Religion was the paramount aspect of Hawaiian life, permeating every daily activity… Ancient Hawaiians worshipped a vast number of deities, of which there were two main categories. Akua represented nature’s elements—they were the personifications of great natural forces. The ‘aumakua were the familiar ancestral protective gods… A note to travelers: If you visit Hawai’i and choose to visit a site of religious or spiritual importance, please approach the site or those worshiping there with respect and reverence.”)(emphasis added).

[21] See Environmental Personhood: Recent Developments and the Road Ahead, Sanket Khandelwal, April 24, 2020 at https://www.jurist.org/commentary/2020/04/sanket-khandelwal-environment-person/ (accessed Nov. 7, 2021). (“The idea of an environmental entity existing as a legal person owes its genesis to the scholarly work of Christopher D. Stone ‘Should Trees Have Standing? Towards Legal Rights for Natural Objects’ and the work’s subsequent referral by Justice William Douglas in the 1972 US Supreme Court case of Sierra Club v. Morton. The case is, primarily, remembered for the dissenting opinion of Justice William Douglas who contended for different environmental elements to have a locus standi before the court of law for their own protection and preservation.”), See also ENVIRONMENTAL PERSONHOOD by Gwendolyn J. Gordon, 43 Colum. J. Envtl. L. 49 (January 11, 2018).

[22] Id. at FN 15. (“Animism is the most ancient, geographically widespread and diverse of all belief systems, adhered to today by some 300 million Indigenous people. It is predicated on the assumption that biophysical entities such as mountains, forests and rocks are typically enspirited by spirits or numina (Sponsel, 2007) or ‘spirits of place’ (ICOMOS, 2008). A numen is a ‘spirit of place’ or genius loci that is present within an object or place (mountain, forest, spring, idol). Numina were very common in ancient Rome (Mehta-Jones, 2005), and the same concept continues to be widespread among Indigenous people throughout the world. In Tibet, for example, they are known as gzhi bdag (Tucci, 1980), and in the Andes they are known as huacas (Bunker, 2006), exemplified by Pachamama. The posthuman represents a return to animism and constitutes a qualitative shift in thinking addressing the basic unit of common reference for our species, our polity and our relationship to the other non-human inhabitants of the planet (Clarke & Rossini, 2016).” For a good paper on contemporary animistic, pagan, indigenous, and neopagan practice and its experience in the United States see: WALKING IN TWO WORLDS: LIVING AN ANIMISTIC SPIRITUAL WORLDVIEW IN THE WESTERN UNITED STATES, PhD Dissertation from Antioch University by Joanne Dorpat Halverson, April 2011 at https://etd.ohiolink.edu/apexprod/rws_etd/send_file/send?accession=antioch1304442186&disposition=attachment

[23] See Who is a non-human person? By Molly Hansen, Nov. 14, 2019At https://bigthink.com/life/non-human-person/ (“Things have no rights, but once an entity is defined as a person it can obtain some rights. So, a ‘non-human person’ refers to an entity that is guaranteed some rights for limited legal purposes.”)

[24] Many people are surprised to hear that the law has recognized a boat or vessel as a legal person. See Ralli v. Troop, 157 U.S. 386, 403, 15 S. Ct. 657, 664, 39 L.Ed. 742 (1895) (affirming “a distinct principle of the maritime law, namely, that the vessel, in whosesoever hands she lawfully is, is herself considered the wrongdoer, liable for the tort, and subject to a maritime lien for the damages”). As dissent in Anne Arundel County v. Reeves, 474 Md. 462, 52 A.3d 921 (Md. App., 2021) writes, “[e]ven though vessels constitute inanimate amalgamations of mostly steel, aluminum, fiberglass and timber, the law endows the vessel with a legal personality (usually gendered as female) and empowers “her” recovery for tort damages.”

[25] See 43 Colum. J. Envtl. L at 51 [The development of a concept of corporate personhood in American law was anything but inevitable. Although we are familiar now with “the idea of a corporation having ‘its’ own rights, and being a ‘person’ and ‘citizen’ for so many statutory and constitutional purposes,” the idea was perhaps as unsettling to contemporary jurists as that of environmental personhood might sound today.]; see also Anne Arundel County v. Reeves

474 Md. 462, 52 A.3d 921 (Md. App., 2021) (dissent)(“Common law has recognized corporate personhood for centuries. citing Cook Cty., Ill. v. United States ex rel. Chandler, 538 U.S. 119, 125, 123 S. Ct. 1239, 1244, 155 L.Ed.2d 247 (2003), United States v. Amedy, 24 U.S. 392, 400, 11 Wheat. 392, 6 L.Ed. 502 (1826), and Trustees of Dartmouth College v. Woodward, 17 U.S. 518, 667, 4 Wheat. 518, 4 L.Ed. 629 (1819) (A corporation “is, in short, an artificial person, existing in contemplation of law, and endowed with certain powers and franchises which, though they must be exercised through the medium of its natural members, are yet considered as subsisting in the corporation itself, as distinctly as if it were a real personage.”)].

[26] Id. at FN 13 (“[R]esurgent indigenous groups (often with a political agenda) have provided the impetus in New Zealand, India and Bolivia that has resulted in these countries granting juristic personhood to enspirited bio-physical entities.”) See also proposed 2021 H.B. 693 (Hawaii): “environmental personhood laws have been enacted in the United States and throughout the world as a means of protecting important ecological and cultural places. In 2006 and 2007, the town of Tamaqua Borough in Pennsylvania established the first environmental personhood ordinances in the nation, which were intended to combat toxic waste. Since then, other locations have enacted or proposed “rights of nature” measures, including in 2010 Pittsburgh, Pennsylvania, and in 2020 Orange County, Florida. Perhaps the most well-known international example of environmental personhood is the Te Awa Tupua (Whanganui River Claims Settlement) Act of 2017 enacted by the New Zealand parliament, which was the first piece of legislation to declare a river to be a legal person. The Te Awa Tupua Act bestowed upon the Whanganui River the rights, duties, and powers of a legal person, including the ability to sue those who harm it. Moreover, the Te Awa Tupua Act was aimed at improving the relationship between the government of New Zealand and its indigenous people through the enshrinement of the rights of nature associated with the culturally significant Whanganui River into law.”

[27] See FN 15 (“Enspiriting is an animistic ritual (and sometimes liturgical) process whereby a spirit or numina is ‘called down’ or invoked by animistic humankind and invited to inhabit a biophysical entity (mountain, forest, rock,

idol) which becomes enspirited permanently providing the spirit is honoured and appeased on a regular basis.”)

[28] Id. at FN 15.

[29] The concept is currently being testing in the form of proposed legislation: 2021 Hawaii House Bill No. 693, introduced January 25, 2021. Proposed legislation “[e]stablishes legal personhood for Mauna Kea. Requires the board of land and natural resources and board of regents of the University of Hawaii to provide certain information prior to approving any use, activity, lease, license, permit, or easement on Mauna Kea. Establishes the Mauna Kea legal personhood working group to review measures enacted by various jurisdictions to protect the rights of nature.”. According to H.B. 693: SECTION 1. The legislature finds that Mauna Kea is a sacred place for the Hawaiian people. According to Hawaiian cultural traditions, Mauna Kea is the home of the divine ancestors of the Hawaiian people. It is also both a burial ground and an important site for Hawaiian cultural practices. It hosts hundreds of archaeological sites, most of which are historic heiau, or shrines, used in Hawaiian spiritual practices. Additionally, Mauna Kea is home to numerous flora and fauna that are not found anywhere else on the planet, some of which have been designated as endangered species by the United States Fish and Wildlife Service.

The legislature further finds that the protection and preservation of Mauna Kea is an issue of statewide concern. Since 1998, four audits by the state auditor have been critical of the management, stewardship, and protection of Mauna Kea. Although significant changes have occurred on Mauna Kea since the 1998 audit, negative experiences over the past fifty years have eroded public confidence and demonstrated the critical need for a new approach to the stewardship of Mauna Kea.

The legislature additionally finds that environmental personhood laws have been enacted in the United States and throughout the world as a means of protecting important ecological and cultural places…

The legislature finds that a similar legal model would be beneficial in resolving longstanding concerns about the management and stewardship of Hawaii’s natural resources and public lands, including Mauna Kea.

Accordingly, the purpose of this Act is to establish legal personhood for Mauna Kea… The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:.. RIGHTS OF NATURE

.. § -2 Mauna Kea; legal personhood. (a) Mauna Kea shall be recognized as a legal person and shall have the rights, powers, and duties of a legal person, including the right to exist and flourish. (b) The board of land and natural resources, the board of regents, and any other public or private entity using Mauna Kea lands shall recognize the legal personhood of Mauna Kea and shall not engage in, or attempt to engage in, activities that violate the rights, powers, and duties bestowed upon Mauna Kea by its establishment as a legal person…. § -4 Right of action. Any individual, public agency, or private entity may bring an action against another individual or entity that violates or attempts to violate the legal personhood of Mauna Kea.…”

[30] Id.. at FN 15 (“The protection of [sacred natural sites] by most Indigenous people is not predicated on a conservation ethic but on ritual compliance enjoined by the numina that inhabits the SNS. The numina traditionally determine what constitutes ‘good’ and ‘bad’ behaviour within their jurisdiction – i.e. the SNS they inhabit (Studley, 2016). This phenomenon of numina acting as law-givers has been termed ‘spiritual governance’ (Bellezza, 1997, p. 41). Many SNS are actively patrolled by self-organised community protectors (Studley, 2016), who in some cases have been given legal authority even without designation of juristic personhood for the SNS.”)

[31] With this being said, it can be hard to distinguish between conservation of the Earth for humans’ sake vs. for the Earth’s own sake. On 21 May 2009, indigenous churches issued a joint declaration at the UN Permanent Forum on Indigenous Issues recommending that the forum recognize Mother Earth as a legal subject (World Council of Churches, 2009). This is not a ban on development, it just means that the Earth itself has rights too.

[32] See FN 15 (“In a seminal article, ‘Should Trees Have Standing?’, Stone (1972) argued that the granting of legal personality should not be limited to corporations and ships but should include animals, trees, rivers and the environment. Stone’s innovation was to propose that the interests of nature should be represented in court by a guardian and that the burden of proof should rest upon the party that had allegedly compromised the integrity of the ecosystem or organism. Stone’s comments echoed remarks made by US Supreme Court Justice William O. Douglas, who in a dissenting opinion argued in a landmark environmental law case (Sierra Club v. Morton, 1972) that environmental objects should have standing to sue in court.”)

[33] No one wants to be sued by their own weeds for weeding the garden!

[34] Becket, Jan, and Joseph Singer, 1999, Pana O`ahu: Sacred Stones, Sacred Land, Honolulu, HI:

University of Hawai`i Press.

[35] Environmentalists may object to this approach because in their view it will only impact a small amount of area that could gain protection and standing to sue for protection. However, “[Sacred Natural Sites] are globally distributed and when aggregated may constitute 12 million km2 or at least 8 per cent of the world’s land surface”. See FN 15.

[36] For general background information regarding this controversy see, generally, LaFrance, Adrienne “WHAT MAKES A VOLCANO SACRED?,” The Atlantic magazine Oct. 30, 2015 at https://www.theatlantic.com/technology/archive/2015/10/what-makes-a-volcano-sacred/413203/ ; for current updates see “The pandemic hasn’t stopped Native Hawaiians’ fight to protect Maunakea” By Frances Nguyen Aug 7, 2020 at https://www.vox.com/2020/8/7/21354619/mauna-kea-tmt-telescope-native-hawaiians (accessed Nov. 7, 2021).

[37] See: Matter of Conservation District Use Application HA-3568, 143 Hawai‘i 379 431 P.3d 752 (Haw. October 30, 2018); Matter of Contested Case Hearing re Conservation District Use Application (CDUA) HA-3568, 143 Hawai‘i 327 430 P.3d 425 (Table)(Haw., November 29, 2018); and Matter of Conservation District Use Application HA-3568, 143 Hawai‘i 328 430 P.3d 426 (Table) (Haw. November 29, 2018).

[38] See https://www.kitv.com/story/40935325/they-would-die-for-our-aina-native-hawaiian-superstar-nicole-scherzinger-moved-by-visit-to-mauna-kea (“The kupuna [Hawaiian elders] are willing to die for this.”), and https://www.hawaiinewsnow.com/2019/07/24/rock-visits-mauna-kea-th-day-tmt-protest/ (“What I realized today, and obviously I’ve been following this for years now, is that it’s bigger than a telescope. It’s humanity. It’s culture. It is the people of Polynesia who are willing to die here to protect this land. It’s not about stopping progress. It’s about respecting a culture.”

[39] To the extent that this impasse may be solved by finding some person or organization that people and the Courts generally agree has cultural authority to speak on behalf of the mountain, the Courts and permitting agencies have already specifically considered this. See:

Mauna Kea Anaina Hou v. Board of Land and Natural Resources, 136 Hawai’i 376 363 P.3d 224

(Hawai‘i 2015) (“Wallace Ishibashi, Jr., a member of the Kealoha Poli‘ahu family, a lineage traditionally recognized as descendants of Poli‘ahu, a snow goddess of Mauna Kea, testified that upon asking Poli‘ahu whether TMT was “compatible with the sacred landscape,” he was informed that “it was okay.”), but see: Hawaii department of Land and Natural Resources Mauna Kea Public Testimony and Comment files at https://dlnr.hawaii.gov/mk/files/2016/10/TIO-EXH-C-26.pdf page 5 Written Direct Testimony of E. Kalani Flores

[40] Id.

[41] Per H.B. 693 SECTION 5. (a) There [would be] established a Mauna Kea legal personhood working group within the [State of Hawaii] department of land and natural resources for administrative purposes. The purpose of the Mauna Kea legal personhood working group shall be to develop recommendations regarding the implementation of legal personhood for Mauna Kea, including but not limited to changes to administrative rules and University of Hawaii policies necessary to effectuate this Act.

(b) The Mauna Kea legal personhood working group shall consist of:

(1) The governor or the governor’s designee;

(2) The president of the senate or the president’s designee;

(3) The speaker of the house of representatives or the speaker’s designee;

(4) The chairperson of the department of land and natural resources or the chairperson’s designee;

(5) The chairperson of the board of trustees of the office of Hawaiian affairs or the chairperson’s designee;

(6) The president of the University of Hawaii or the president’s designee;

(7) A representative from a nonprofit, public interest organization specializing in advocacy for environmental and conservation issues;

(8) A representative from a nonprofit, public interest organization specializing in Native Hawaiian rights law; and

(9) A representative from a nonprofit, public interest organization specializing in Native Hawaiian cultural practices.

(c) The members of the working group may select a chairperson from amongst its membership…. “

[42] Because this is such a dynamic and emerging area of law, even dissents discussing where the justice’s thoughts are going on this subject are quite interesting. For example, see Anne Arundel County v. Reeves, 474 Md. 462, 52 A.3d 921 (Md. App., 2021) (dissent) (“The common law extended recognition of legal personage to what the average person would consider property not because people loved corporations and vessels more than their pets. Instead, legal, commercial, and societal interests demanded it. ‘[A]nything can be made a legal unit, and the subject of rights and duties, a fund, a building, a child unborn, a family. There is no reason, except the practical one, why, as someone has suggested, the law should not accord to the last rose of summer a legal right not to be plucked.’ Jeffery S. Kerr, et al., A Slave by Any Other Name is Still a Slave, 19 Animal L. 221, 226 (2013) (quoting Gerard Cark Gebdersib, The Position of Foreign Corporations in American Law (Harvard U. Press 1918)) (footnote omitted).”)

*945 Similarly, extending legal personhood to pets on a limited basis to recover for emotional damages for the pet’s grossly negligent injury or death could present an incremental change to Maryland tort law. More importantly, it serves to dignify the deep emotional connection between humans and their pets and underscores a widely shared belief in modern society that animals are not chattel, but members of the family.8

The law should similarly extend a recognition of limited personhood to pets, if only so their human companions can seek recovery for grossly negligent conduct that

[43] Id. at FN 15 (“The ancient laws of jus gentium referred to the rules and laws that were common in the nations within the Roman Empire, as formulated by the Byzantine Emperor Justinian and later developed into the ‘public trust’ doctrine which held that the sea, the shores of the sea, the air and running water were common to everyone. This principle became the law in England, which distinguishes between private property capable of being owned by individuals and certain common resources that the monarch holds in inalienable trust for present and future generations. Many common law courts have adopted and applied public trust law. These laws confer trusteeship or guardianship on the government, with an initial focus on fishing rights and access to the shore, navigable waters and the lands beneath them.”)

[44] Id. at FN 15 (“After the publication of an influential law review article by Joseph Sax (1970), courts in the United States began to expand the doctrine of public trusts and apply it to other resources, including wildlife and public lands. This is included in the constitutions of Pennsylvania, Hawaii, Rhode Island and Alaska. Public trusts, however, like corporations, are normally constituted only for the benefit of human beings. A more far reaching measure is required to confer juristic personhood and direct rights on other-than-human persons.”)

[45] Id. at FN 15.

[46] Id at FN 15 citing Derks, S. (2009) Power and Pilgrimage: Dealing with Class, Gender and Ethnic Inequality at a Bolivian Marian Shrine. Vol. 47. Münster: LIT Verlag.

[47] Id. (“It states that: “Nature or PachaMama … has the right to exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in evolution” (Republic of Ecuador, 2008, Article 71).”)

[48] Plurinational State of Bolivia (2010) BOLIVIA: Law of the Rights of Mother Earth – No. 071 [Ley de Derechos de La Madre Tierra ‐ No. 071], La Paz

[49] See Zartner, Dana, Watching Whanganui & The Lessons Of Lake Erie: Effective Realization Of Rights Of Nature Laws, 22 Vtjenvtll 1 (2021).

[50] Rivers Get Human Rights: They Can Sue to Protect Themselves, By Mihnea Tanasescu, June 19, 2017 at https://www.scientificamerican.com/article/rivers-get-human-rights-they-can-sue-to-protect-themselves/ (accessed Nov. 7, 2021)

[51] Id. citing Tamaqua Borough, Pennsylvania, CMTY. ENV’T LEGAL DEF. FUND (Aug. 31, 2015), https://celdf.org/2015/08/tamaqua-borough/.

[52] See Dana Zartner, How Giving Legal Rights to Nature Could Help Reduce Toxic Algae Blooms in Lake Erie, THE CONVERSATION (Sept. 10, 2019), https://theconversation.com/how-giving-legal-rights-to-nature-could-help-reduce-toxic-algae-blooms-in-lake-erie-115351.

[53] See National Agricultural Law Center, “Turning the Tides: Judge Finds Lake Erie Bill of Rights Unconstitutional”, Mar 4, 2020 Ag & Food Law Update by Brigit Rollins found at https://nationalaglawcenter.org/turning-the-tides-judge-finds-lake-erie-bill-of-rights-unconstitutional/ (accessed 12/9/2021)

[54] Id. at 54.

[55] Id at FN15.

[56] Salim v State of Utarakhand (2017). Writ Petition No. 210 of 2017(M/S). Utarakhand High Court. Nanital, Page 1

[57] Id. See also MOHD. SALIM V STATE OF UTTARAKHAND AND OTHERS By: Smaranika Sen | 13 Nov 2020 https://lawsisto.com/legalnewsread/ODczOQ==/MOHD-SALIM-V-STATE-OF-UTTARAKHAND-AND-OTHERS .

[58] Miglani v State of Utarakhand (2017) Lalit Miglani v State of Utarakhand and Others (2017) Writ Petition (PIL) No.140 of 2015. Utarakhand High Court, Nanital, Page 1.

[59] Singh, N. (2009) The Secret Abode of Fireflies: Loving and Losing Spaces of Nature in the City. New Delhi: Youthreach.

[60] State of Utarakhand v Salim (2017). State of Utarakhand and Others v Mohd. Salimand Others (2017) Petition(s) for Special Leave to Appeal (C) No(s). 016879/2017 (Arising out of Impugned Final Judgment and Order Dated 20‐03‐2017 in WP (PIL) No. 126/2014 Passed by the High Court Of Utarakhand at Nainital). Supreme Court of India. Delhi, Page 1.

[61] See KAHEA v UHH (2013) KAHEA v UHH HA-11–05 TMT Final Decision available from http://dlnr.hawaii.gov/occl/files/2013/08/HA-11-05-TMTFinal-Decision.pdf [1 June 2018]. See also Mauna Kea Anaina Hou and Others v Board of Land and Natural Resources, State of Hawaii and Others (2013) Petitions Requesting a Contested Hearing Re Conservation District Use Permit (CDUP) HA‐3568 for the Thirty

Meter Telescope at the Mauna Kea Science Reserve, Ka’ohe Mauka, Hamakua District, Island of Hawaii, TMK (3) 4‐4‐015:009, Page 1. http://www.malamamaunakea.org/uploads/management/plans/TMT_FinalDecision_HA‐11‐05.pdf. 29.