NO IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. KELIʻI AKINA, ET AL., Plaintiffs-Appellants,

Transcription

1 Case: , 04/21/2016, ID: , DktEntry: 16, Page 1 of 33 NO IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT KELIʻI AKINA, ET AL., Plaintiffs-Appellants, v. THE STATE OF HAWAI I, ET AL., Defendants-Appellees. On Appeal from the United States District Court for the District of Hawai i Honorable J. Michael Seabright, United States District Judge (Civil No JMS-BMK) ANSWERING BRIEF OF DEFENDANTS-APPELLEES NA I AUPUNI AND THE AKAMAI FOUNDATION SULLIVAN MEHEULA LEE A Limited Liability Law Partnership WILLIAM MEHEULA NADINE Y. ANDO NATASHA L.N. BALDAUF 745 Fort Street, Suite 800 Honolulu, Hawai i Telephone: (808) Counsel for Defendants-Appellees NAʻI AUPUNI and THE AKAMAI FOUNDATION McCORRISTON MILLER MUKAI MacKINNON LLP DAVID J. MINKIN TROY J.H. ANDRADE JESSICA M. WAN Five Waterfront Plaza, 4th Floor 500 Ala Moana Boulevard Honolulu, Hawai i Telephone: (808) Counsel for Defendant-Appellee NAʻI AUPUNI April 21,

2 Case: , 04/21/2016, ID: , DktEntry: 16, Page 2 of 33 CORPORATE DISCLOSURE STATEMENT Pursuant to Federal Rules of Appellate Procedure ( FRAP ) Rule 26.1, Defendant-Appellee Na i Aupuni hereby states that it has no parent corporation or public corporation that owns 10% or more of its stock. Pursuant to FRAP Rule 26.1, Defendant-Appellee The Akamai Foundation hereby states that it has no parent corporation or public corporation that owns 10% or more of its stock

3 Case: , 04/21/2016, ID: , DktEntry: 16, Page 3 of 33 TABLE OF CONTENTS Page(s) I. STATEMENT OF JURISDICTION... 1 II. STATEMENT OF THE ISSUES PRESENTED FOR REVIEW... 2 III. STATUTORY AUTHORITIES... 2 IV. STATEMENT OF THE CASE... 3 A. Native Hawaiians and the Public Trust... 3 B. Act 195 and the Native Hawaiian Roll Commission... 4 C. Na i Aupuni... 5 D. Procedural History... 8 V. SUMMARY OF ARGUMENT...10 VI. STANDARDS OF REVIEW...10 VII. ARGUMENT...11 A. This Appeal is Moot as the Court Cannot Grant Any Effectual Relief...11 B. Assuming the Appeal is Not Moot, the District Court Did Not Err in Denying Proposed Intervenors Motion to Intervene The District Court Did Not Err in Concluding that Proposed Intervenors Did Not Have a Significantly Protectable Interest The District Court Did Not Err in Concluding that the Disposition of the Action Does Not, as a Practical Matter, Impair or Impede Proposed Intervenors Ability to Protect their Interest i

4 Case: , 04/21/2016, ID: , DktEntry: 16, Page 4 of Proposed Intervenors Misconstrue the District Court s Citation to Similar Court Rulings Regarding Breach of Trust...22 VIII. CONCLUSION ii

5 Case: , 04/21/2016, ID: , DktEntry: 16, Page 5 of 33 TABLE OF AUTHORITIES Page(s) CASES Arakaki v. Cayetano, 324 F.3d 1078 (9th Cir. 2003)... passim Church of Scientology of California v. United States, 506 U.S. 9 (1992)...11 Day v. Apoliona, 616 F.3d 918, (9th Cir. 2010)...23 Donnelly v. Glickman, 159 F.3d 405 (9th Cir. 1998)... 17, 18, 19, 20 Foster v. Carson, 347 F.3d 742 (9th Cir. 2003)...11 Greene v. United States, 996 F.2d 973, 976 (9th Cir. 1993)...17 Kahawaiolaa v. Norton, 386 F.3d 1271 (2004)...21 Kealoha v. Machado, 131 Hawai i 62, 64, 315 P.3d 213, 215 (2013)... 23, 24 Mills v. Green, 159 U.S. 651 (1895)...11 Murphy v. Hunt, 455 U.S. 478 (1982)...12 Protectmarriage.com v. Bowen, 752 F.3d 827 (9th Cir. 2014)... 12, 14, 15, iii

6 Case: , 04/21/2016, ID: , DktEntry: 16, Page 6 of 33 STATUTES 28 U.S.C U.S.C U.S.C U.S.C (d)... 2 Admission Act, Pub. L. No. 86-3, 73 Stat. 4 (1959)... 3 Haw. Rev. Stat Haw. Rev. Stat. 10H-3(a)(1)... 4 Haw. Rev. Stat. 10H-3(a)(2)(B)... 5 Hawaiian Homes Commission Act, Pub. L. No , 42 Stat. 108, 201(a) (1921)... 3 RULES Fed. R. Civ. P. 24(a)... 2 Ninth Circuit Rule Ninth Circuit Rule Rules of the Supreme Court of the United States Rule CONSTITUTIONAL PROVISION Haw. Const. art. XII, iv

7 Case: , 04/21/2016, ID: , DktEntry: 16, Page 7 of 33 ANSWERING BRIEF OF DEFENDANTS-APPELLEES NA I AUPUNI AND THE AKAMAI FOUNDATION In this matter, the district court denied Appellants-Proposed Intervenors Samuel L. Kealoha, Jr., Virgil E. Day, Josiah L. Hoohuli, Patrick L. Kahawaiolaa, and Melvin Hoomanawanui s (collectively, Proposed Intervenors ) Motion to Intervene, filed on September 25, 2015 ( Motion to Intervene ) that would have allowed Proposed Intervenors to participate in a lawsuit in which multiple plaintiffs sought to halt Appellee Na i Aupuni s ( NA ) private election of delegates to its own convention. Proposed Intervenors appealed the district court s denial and, while this appeal was pending, NA terminated its election and ceased further efforts at facilitating the path for Native Hawaiian self-determination. The continued pursuit of this appeal is, thus, an exercise of futility. With the cancellation of NA s election and its cessation of further efforts towards facilitating a path toward Native Hawaiian self-determination, this Court can no longer award Proposed Intervenors any effective relief, and the facts and any remaining legal issues have changed significantly such that this appeal is now moot. Regardless of the issue of mootness of this appeal, Proposed Intervenors attempt to discredit the district court s legal analysis resulting in the denial of their Motion to Intervene is, as detailed below, unavailing. I. STATEMENT OF JURISDICTION The United States District Court for the District of Hawai i had subject

8 Case: , 04/21/2016, ID: , DktEntry: 16, Page 8 of 33 matter jurisdiction over the underlying matter pursuant to 28 U.S.C. 1331, 28 U.S.C. 1343, and 52 U.S.C (d), as the Plaintiffs brought suit to enjoin Appellees from allegedly violating Plaintiffs rights under the U.S. Constitution, the Voting Rights Act of 1965, and the Civil Rights Act of Excerpts of Record ( ER ) at 1, 3. The district court denied the Motion to Intervene on November 13, ER Pursuant to 28 U.S.C. 1291, Proposed Intervenors timely appealed to this Court on December 11, ER However, and as discussed infra part VII.A of this brief, this appeal is moot as the Court cannot grant any effectual relief given NA s termination of its private election. II. STATEMENT OF THE ISSUES PRESENTED FOR REVIEW delegates. 1. Whether this appeal is moot given NA s termination of its election of 2. Whether the district court erred in denying the Motion to Intervene. III. STATUTORY AUTHORITIES authority: Pursuant to Ninth Circuit Rule , NA sets out the following relevant Federal Rules of Civil Procedure Rule 24(a) provides: (a) Intervention of Right. On timely motion, the court must permit anyone to intervene who: (1) is given an unconditional right to intervene by a federal statute; or

9 Case: , 04/21/2016, ID: , DktEntry: 16, Page 9 of 33 (2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest. IV. STATEMENT OF THE CASE A. Native Hawaiians and the Public Trust In 1959, as a condition of admission as a State, the State of Hawai i agreed to hold certain lands granted to the State by the United States in a public land trust, subject to the trust provisions set forth in section 5(f) of the Hawai i Admission Act, Pub. L. No. 86-3, 73 Stat. 4 (1959) ( Admission Act ). Section 5(f) of the Admission Act required the State to hold those Public Lands and the profits from them for one of five enumerated purposes, including the betterment of the conditions of native Hawaiians, as defined in the Hawaiian Homes Commission Act[.] 1 In 1978, the people of Hawai i including non-hawaiians voted for and ratified several additions to the State Constitution that, among other things, protected Hawaiian culture by making the Hawaiian language an official language 1 The term native Hawaiian is used throughout this brief to denote any descendant of not less than one-half part of the blood of the races inhabiting the Hawaiian Islands previous to Hawaiian Homes Commission Act, Pub. L. No , 42 Stat. 108, 201(a) (1921) ( HHCA ). By contrast, the terms Hawaiian or Native Hawaiian are used throughout to include any descendant of the indigenous peoples of the islands of Hawai i, regardless of proportional ancestry. Cf. Hawai i Revised Statutes ( HRS )

10 Case: , 04/21/2016, ID: , DktEntry: 16, Page 10 of 33 of the State, formalized constitutional rights for gathering and access, and created an Office of Hawaiian Affairs ( OHA ) to manage and administer the proceeds from the sale or other disposition of the lands... and income derived from whatever sources for native Hawaiians and Hawaiians, including all income and proceeds from that pro rata portion of the [Public Lands] trust.... Haw. Const. art. XII, 6. The constitutional amendment, thus, created an entity to better the condition of all Hawaiians and made no distinction among them based on blood quantum. B. Act 195 and the Native Hawaiian Roll Commission In 2011, Act 195, codified as HRS chapter 10H, established a five-member Native Hawaiian Roll Commission ( NHRC ). See HRS 10H-3(a)(1). The NHRC was tasked to publish a roll of Native Hawaiians (the Roll ) intended to facilitate the process under which qualified Native Hawaiians may independently commence the organization of a convention of qualified Native Hawaiians, established for the purpose of organizing themselves. Na i Aupuni s Supplemental Excerpts of Record ( NA Supp. ER ) Act 195 defined a qualified Native Hawaiian as an individual, age eighteen or older, who certifies that he or she (1) is a descendant of the aboriginal peoples who, prior to 1778, occupied and exercised sovereignty in the Hawaiian islands, the area that now constitutes the State of Hawaii, and (2) has maintained a significant cultural,

11 Case: , 04/21/2016, ID: , DktEntry: 16, Page 11 of 33 social, or civic connection to the Native Hawaiian community and wishes to participate in the organization of the Native Hawaiian governing entity. HRS 10H-3(a)(2)(B). Act 77 (2013) amended Act 195 to precertify registrants from multiple databases of verified Native Hawaiians, as maintained by OHA, for the Roll. NA Supp. ER Pursuant to Act 77, OHA sent electronic files to the NHRC that included the OHA registrants for inclusion in the Roll. NA Supp. ER at 4, 6; 102 at 10; 108 at 15. The individuals registered through OHA needed to meet ancestry requirements to be included in OHA s databases. NA Supp. ER at C. Na i Aupuni NA, incorporated on December 23, 2014, is a non-profit corporation. NA Supp. ER 114 at 6. NA is comprised of Native Hawaiian directors who formed NA to provide a process for Native Hawaiians to further self-determination and self-governance. NA Supp. ER 128; at 6. NA planned to hold an election for delegates to a proposed convention and, on February 26, 2015, discussed its plans to hold such an election in September of NA Supp. ER 140. NA anticipated that the convention of delegates would discuss and perhaps propose a recommendation on membership of a Native Hawaiian governing entity ( NHGE ), and NA decided, on its own and as one of its initial decisions, that

12 Case: , 04/21/2016, ID: , DktEntry: 16, Page 12 of 33 Native Hawaiian delegates should make that determination and that its election and convention process thus should be composed of Native Hawaiians. NA Supp. ER 119 at 13. Prior to entering into any formal relationship with OHA, NA informed OHA that it intended to use the Roll, but that it would also look into whether other available lists of Native Hawaiians could be used to form its voter list. NA Supp. ER 119 at 13. The NA directors did not view Act 195, OHA, or the State of Hawai i, as controlling their decision making. ER NA requested grant funds from OHA so that NA could conduct its election of delegates, convention and ratification vote process. NA Supp. ER at 14. On April 27, 2015, at NA s request, OHA, the Akamai Foundation ( Akamai ), and NA entered into a Grant Agreement whereby OHA provided $2,595,000 of section 5(f) trust funds to Akamai as a grant for the purpose of NA conducting an election of delegates, convention and ratification vote. See NA Supp. ER at ; at 14. The Grant Agreement contained the following autonomy clause: 3. Naʻi Aupuni s Autonomy. As set forth in the separate Fiscal Sponsorship Agreement, OHA hereby agrees that neither OHA nor AF will directly or indirectly control or affect the decisions of NA in the performance of the Scope of Services, and OHA agrees that NA has no obligation to consult with OHA or AF on its decision regarding the performance of the Scope of Services. NA hereby agrees that the decisions of NA and its directors, paid consultants, vendors, election monitors, contractors, and attorneys regarding the performance of the Scope of Services will not be directly or indirectly controlled or affected by OHA

13 Case: , 04/21/2016, ID: , DktEntry: 16, Page 13 of 33 NA Supp. ER 145; ER 26; NA Supp. ER 109 at 19, 21. An issue that the NA directors also discussed was the utility of available lists of adult Native Hawaiians other than the Roll. NA Supp. ER 121 at 18. After considering this issue for over two months, the NA directors determined that the Roll was the best available option because it was extraordinarily expensive and time consuming to compile a list of Native Hawaiians. NA Supp. ER 121 at 18. Thus, on June 1, 2015, the NA board decided, on its own, that it would use the certified Roll as supplemented by OHA s Hawaiian Registry program. NA Supp. ER 121 at 18. On June 18, 2015, NA and Election-America ( EA ) entered into an Agreement for EA to provide services to conduct the delegate election. NA Supp. ER 122 at 21. NA subsequently requested that NHRC provide EA with its certified Roll in mid-july 2015; NHRC honored that request and periodically supplemented additional registrant information to EA. NA Supp. ER 122 at 22. On August 3, 2015, EA sent to approximately 95,000 certified Native Hawaiians a notice of the election of delegates that included information about becoming a delegate candidate ( Notice ). NA Supp. ER at 25. The Notice included key dates, including a transmittal of ballots to certified voters on November 1, 2015, and a deadline to vote of November 30, NA Supp. ER NA, on its own, decided on these dates, the deadlines, and the election

14 Case: , 04/21/2016, ID: , DktEntry: 16, Page 14 of 33 process set forth in the Notice. On September 30, 2015, EA announced the delegate candidates. NA Supp. ER ; 125 at 27. D. Procedural History On August 13, 2015, Plaintiffs filed their Complaint alleging that the restrictions on registering for the Roll violated the First, Fourteenth and Fifteenth Amendments of the U.S. Constitution and the Voting Rights Act, see ER , and sought to enjoin the use of the Roll that has been developed using these procedures, and the calling, holding, or certifying of any election utilizing the Roll. ER 183. On August 27, 2015, Plaintiffs filed an injunction motion, in which they sought an order preventing Defendant s [sic] from undertaking certain voter registration activities and from calling or holding racially-exclusive elections for Native Hawaiians[.] NA Supp. ER ; 161. On September 25, 2015, Proposed Intervenors filed their Motion to Intervene pursuant to Federal Rules of Civil Procedure ( FRCP ) Rule 24(a). ER 115. On October 29, 2015, which was during the pendency of the decision on the Motion to Intervene, the district court denied the injunction motion. ER 11-74; NA Supp. ER NA filed its opposition to the Motion to Intervene on October 30, NA Supp. ER Following submission of Proposed Intervenors Reply, see NA Supp. ER 52-69, the district court denied the Motion to Intervene on November 13, 2015, see ER

15 Case: , 04/21/2016, ID: , DktEntry: 16, Page 15 of Proposed Intervenors thereafter timely filed their Notice of Appeal on December 11, ER On December 15, 2015 before the revised end of the voting period on December 21, 2015, without consultation of OHA or the State, and after the filing of the Notice of Appeal NA terminated the election. See Na i Aupuni, News Release, Na i Aupuni Terminates Election Process, available at pdf (Dec. 15, 2015) ( Termination Press Release ). NA s decision to terminate the election marked a change of course to avoid further delay in its organizational efforts, and to move forward with organizing a gathering of Native Hawaiians without engaging at all in the conduct that Plaintiffs were challenging. NA, thus, decided that instead of waiting for this Court s decision and any further appeals, it would take a different approach. Rather than hold an election to select delegates to a constitutional convention, it would offer the former candidates the opportunity as a broader based organizing group to direct the path forward. See Termination Press Release. NA did not count ballots or certify winners of the election, and announced that it will never do so. Id. Also on December 15, 2015, NA informed all of the 196 candidates of the election s termination, and announced that all of the candidates who stood for election would be invited to

16 Case: , 04/21/2016, ID: , DktEntry: 16, Page 16 of 33 attend an aha to be convened in February See id. V. SUMMARY OF ARGUMENT The premise of Proposed Intervenors Motion to Intervene was to allow them to participate in the underlying lawsuit so that they could seek to enjoin NA s election of delegates and enjoin the expenditure of section 5(f) trust funds in support of the election. Because NA terminated its election, this Court cannot grant Proposed Intervenors any relief sought, and, therefore, this appeal is moot. The issues raised in the instant appeal do not fall under the capable of repetition, yet evading review exception to the mootness doctrine because the controversy here is not of inherently limited duration and there is no evidence that the Proposed Intervenors would be subjected to the same action in the future. In the event that this Court determines that the appeal is not moot, the district court did not err in denying the Motion to Intervene inasmuch as Proposed Intervenors do not have a significantly protectable interest and they are not situated such that the disposition of the action may impair or impede their ability to protect their alleged interest. VI. STANDARDS OF REVIEW Mootness is a jurisdictional issue, and federal courts have no jurisdiction to hear a case that is moot, that is, where no actual or live controversy exists. If there 2 ʻAha is defined as a meeting, assembly, gathering, convention, court, party. Ulukau Hawaiian Dictionary, available at

17 Case: , 04/21/2016, ID: , DktEntry: 16, Page 17 of 33 is no longer a possibility that an appellant can obtain relief for his claim, that claim is moot and must be dismissed for lack of jurisdiction. Foster v. Carson, 347 F.3d 742, 745 (9th Cir. 2003) (quotation marks and citations omitted). The district court s decision regarding intervention as a matter of right pursuant to Federal Rule of Civil Procedure 24(a)(2) is reviewed de novo. Arakaki v. Cayetano, 324 F.3d 1078, 1082 (9th Cir. 2003) (citation omitted). As this Court has concluded: A party seeking to intervene as of right must meet four requirements: (1) the applicant must timely move to intervene; (2) the applicant must have a significantly protectable interest relating to the property or transaction that is the subject of the action; (3) the applicant must be situated such that the disposition of the action may impair or impede the party s ability to protect that interest; and (4) the applicant s interest must not be adequately represented by existing parties. Each of these four requirements must be satisfied to support a right to intervene. Id. at 1083 (emphasis added) (citations omitted). VII. ARGUMENT A. This Appeal is Moot as the Court Cannot Grant Any Effectual Relief A federal court may not give opinions upon moot questions or abstract propositions, or... declare principles or rules of law which cannot affect the matter in the issue in the case before it. Church of Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992) (quoting Mills v. Green, 159 U.S. 651, 653 (1895)). For that reason, if an event occurs while a case is pending on appeal that makes it

18 Case: , 04/21/2016, ID: , DktEntry: 16, Page 18 of 33 impossible for the court to grant any effectual relief whatever to a prevailing party, the appeal must be dismissed. Id. (quoting Mills, 159 U.S. at 653). In this matter, events subsequent to the filing of the instant appeal have rendered this appeal moot as the issues presented are no longer live and Proposed Intervenors lack a legally cognizable interest in the outcome. See Murphy v. Hunt, 455 U.S. 478 (1982); Protectmarriage.com v. Bowen ( Bowen ), 752 F.3d 827, 836 (9th Cir. 2014) ( A federal court loses its jurisdiction to reach the merits of a claim when the court can no longer effectively remedy a present controversy between the parties. (citation omitted)). The filings below provide ample justification to support the conclusion that this appeal is moot inasmuch as the relief sought can no longer be provided. Indeed, in filing their Motion to Intervene below, Proposed Intervenors sought intervention to assert a cross-claim against the Defendants:... to challenge the State s authority to establish a Sovereign Hawaiian Entity without a blood quantum limited to not less than one-half part of the blood of the races inhabiting the Hawaiian Islands prior to [Proposed] Intervenors would allege that the creation of such entity to represent native Hawaiians without a blood quantum is a violation of their right to Equal Protection and that expenditure of [section] 5(f) income and proceeds to do so is a violation of the [section] 5(f) trust. NA Supp. ER at 17. Following the district court s denial of Plaintiff s motion for preliminary injunction (i.e., allowing NA s election to proceed) on October 29, 2015, Proposed

19 Case: , 04/21/2016, ID: , DktEntry: 16, Page 19 of 33 Intervenors in their Reply to Memorandum in Opposition to Motion to Intervene sought new and limited relief: [Proposed] Intervenors originally sought to prevent the election utilizing the Roll. However, in light of the [district court s] ruling on Plaintiff s motion for injunction, [Proposed] Intervenors no longer seek to prevent NA s election. [Proposed] Intervenors merely seek to enjoin the use of [section] 5(f) funds [for] the election. If NA is holding a private election... they are certainly entitled to do so. However, they should not be permitted to use [section] 5(f) funds for such private election. [Proposed] Intervenors no longer seek to prevent the private NA election using the Roll, they merely seek to enjoin the use of [section] 5(f) funds for such purpose. NA Supp. ER at 68 (emphases added). In its November 13, 2015 Order, the district court denied the Motion to Intervene on the grounds that Proposed Intervenors did not have a significantly protectable interest in the property or transaction that was the subject of the litigation and that they were not situated such that the disposition of the action would impair or impede their ability to protect their interest. ER 7. The district court concluded that the claims that Proposed Intervenors would assert, i.e., a claim that NA s election and Act 195 violated their equal protection rights and a claim that NA breached the section 5(f) trust in using funds on NA s election, were entirely different or wholly unrelated to the claims raised in the underlying lawsuit. ER 7-8. On December 15, 2015, one month after the district court denied intervention, NA abandoned its election that was the crux of the Motion to

20 Case: , 04/21/2016, ID: , DktEntry: 16, Page 20 of 33 Intervene and the basis of the district court s decision. As was made clear in the Termination Press Release, NA decided that the election votes will never be counted, and there is no support for the contention that NA will conduct a future election. This Court, therefore, cannot reverse the district court and allow intervention in the underlying lawsuit regarding the validity of NA s election when an election will never occur. Accordingly, this appeal is moot. Any exception to mootness doctrine is not applicable. Under the capable of repetition, yet evading review exception to the mootness doctrine, a court will decline to dismiss an otherwise moot action if it finds: (1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again. Bowen, 752 F.3d at 836. Notably, this exception is to be applied sparingly, and only in exceptional situations. Id. As to the first prong, [f]or a controversy to be too short to be fully litigated... it must be of inherently limited duration... because the capable of repetition, yet evading review exception is concerned not with particular lawsuits, but with classes of cases that, absent an exception, would always evade judicial review. Id. (citation omitted) (emphases in original). This is not a controversy that will present a live action until a particular date, see id., such as an abortion case, in which, regardless of any injunction that might issue, the dispute will cease once a

21 Case: , 04/21/2016, ID: , DktEntry: 16, Page 21 of 33 woman s pregnancy ends. Here, and assuming arguendo that a future election is similar to NA s cancelled election, there would be sufficient time to resolve the dispute prior to an election occurring. Indeed, and as was the case with the Appellants in the underlying lawsuit who were able to obtain review at all levels of the federal judiciary system within a span of four months, there are several mechanisms available to Proposed Intervenors to expedite a ruling and appellate review. See, e.g., Ninth Circuit Rule 27-3 (setting forth procedures for emergency and urgent motions practice); Rules of the Supreme Court of the United States Rule 22 (setting forth expedited procedures for action by individual justices). Proposed Intervenors, therefore, cannot satisfy the first prong of the exception. See Bowen, 752 F.3d at 837 ( Controversies that are not of inherently limited duration do not create exceptional situations justifying the rule s application, because, even if a particular controversy evades review, there is no risk that future repetitions of the controversy will necessarily evade review as well. ). As to the second prong, there is no reasonable expectation that Proposed Intervenors will be subject to the same challenged activity. Here, there is no evidence that NA would be conducting another private election for delegates in the future. To the contrary, NA has cancelled its election and there is nothing to suggest that NA will revert to another election. In addition, there is no evidence that Proposed Intervenors would be subjected to the same action in part because

22 Case: , 04/21/2016, ID: , DktEntry: 16, Page 22 of 33 NA s independence allowed it, much like any other private organization, to make its own decisions on who can and cannot participate in its activities. As this Court has made clear, actions seeking to enjoin future conduct become moot if the challenged conduct actually occurs and causes an injury that cannot be reversed. Id. (emphasis added). There is, thus, no evidence that a future NA election will actually occur[]. Id. Therefore, the capable of repetition, yet evading review exception to the mootness doctrine is not applicable, this appeal is moot, and this Court should dismiss the appeal. B. Assuming the Appeal is Not Moot, the District Court Did Not Err in Denying Proposed Intervenors Motion to Intervene Proposed Intervenors argue, as they did below, that intervention as of right was appropriate because their Motion to Intervene was timely, they have a significantly protectable interest, they are situated such that disposition of this action would impair or impede their ability to protect their interest, and they are not adequately represented. As discussed below, and assuming that Proposed Intervenors can overcome the significant mootness issue of their appeal, the district court did not err in denying the Motion to Intervene. 3 3 The district court did not address the timeliness and adequacy of representation prongs of the test for intervention as of right because its decision regarding the other two prongs were dispositive. See ER 10 n.5 (citing Arakaki, 324 F.3d at 1084 ( The applicant must satisfy each element. )). Assuming

23 Case: , 04/21/2016, ID: , DktEntry: 16, Page 23 of The District Court Did Not Err in Concluding that Proposed Intervenors Did Not Have a Significantly Protectable Interest Although not expressly stated in their Opening Brief, Proposed Intervenors appear to take issue with the district court s determination that Proposed Intervenors do not have a significantly protectable interest relating to the property or transaction that is the subject of the action. ER 7 (citing Arakaki, 324 F.3d at 1083). As the movant, Proposed Intervenors had to demonstrate a significantly protectable interest in the lawsuit to merit intervention. Arakaki, 324 F.3d at Whether an applicant for intervention as of right demonstrates sufficient interest in an action is a practical, threshold inquiry[.] Greene v. United States, 996 F.2d 973, 976 (9th Cir. 1993). To demonstrate this significantly protectable interest, a prospective intervenor must establish that: (1) the asserted interest is protected under some law, and (2) there is a relationship between its legally protected interest and the plaintiff s claims. Donnelly v. Glickman, 159 F.3d 405, 409 (9th Cir. 1998) (citation omitted). Proposed Intervenors did not satisfy this two-prong threshold inquiry. arguendo that the Court is inclined to reverse the district court s conclusion, NA requests that the Court remand the matter to the district court for a determination of the timeliness of the Motion to Intervene and the adequacy of the representation of Proposed Intervenors interest in the matter

24 Case: , 04/21/2016, ID: , DktEntry: 16, Page 24 of 33 Proposed Intervenors asserted below and reassert verbatim here that intervention is necessary because the lack of any blood quantum as a qualification for voting and membership in this State created Hawaiian governmental entity is a violation of their right to equal protection under the Fourteenth Amendment because they are being treated differently when [a]ll other native Americans have the right under federal law to determine for themselves the qualifications for membership in their tribal entities. Opening Brief at 16. It, thus, appears that Proposed Intervenors are asserting: (1) through an equal protection claim, an interest as a person of one-half or more Indian blood to determine the qualifications for membership in a tribal entity; and (2) through a breach of trust claim, an interest as a beneficiary in the expenditure of section 5(f) trust funds. However, Proposed Intervenors do not adequately demonstrate a relationship between their alleged interests and the claims raised by the Plaintiffs. See Donnelly, 159 F.3d at 409. On one hand, Plaintiffs argue that the NA Process is racially-based and violates equal protection, the Fifteenth Amendment, the Voting Rights Act, due process, and the First Amendment. See ER Plaintiffs claims focused on the apparent distinction made between Hawaiians and non-hawaiians and, importantly, made no distinction between the grant of benefits to Hawaiians and native Hawaiians. ER Proposed Intervenors interests, on the other hand, relate entirely to challenging, on the basis

25 Case: , 04/21/2016, ID: , DktEntry: 16, Page 25 of 33 of an equal protection claim, the lack of any blood quantum as a qualification for voting and membership[,] and mandating the expenditure of funds solely to native Hawaiians. These issues go beyond the claims in this litigation. 4 Despite Proposed Intervenors mischaracterization, reliance on Arakaki is appropriate inasmuch as Proposed Intervenors are improperly asserting new and unrelated issues into this litigation. 5 In Arakaki, this Court found intervention inappropriate in a situation where the proposed-intervenors sought to assert a breach of trust claim under section 5(f) after the plaintiffs similar claim in that case was dismissed. 324 F.3d at This Court held, [b]ecause this trust claim is no longer the subject of Plaintiffs action, intervention is inappropriate as a matter of right. Id. In the instant case, Plaintiffs do not assert a breach of trust 4 As articulated in Arakaki, 324 F.3d at 1083, Proposed Intervenors are not precluded from filing a separate lawsuit alleging their breach of trust claims. Proposed Intervenors filed a separate lawsuit on November 13, 2015 the day the district court issued its Order and have, thus far, failed to serve any of the parties. See Kealoha v. State, Case No. 1:15-cv JMS-BMK. 5 Proposed Intervenors reliance on Arakaki in support of the proposition that they have a significantly protectable interest in this matter is misplaced. In Arakaki, this Court found that the proposed-intervenors had in the narrow context of a lawsuit challenging the provision of benefits by OHA and the Department of Hawaiian Home Lands a significantly protectable interest in the continued receipt of benefits from those programs. Id. at Here, there is no threat to Proposed Intervenors continued receipt of benefits by the claims raised in this lawsuit. Plaintiffs are challenging the NA Process and not challenging the validity of the Public Lands trust for which Proposed Intervenors are alleged beneficiaries. See Donnelly, 159 F.3d at 410 ( An application generally satisfies the relationship requirement only if the resolution of the plaintiff s claims actually will affect the applicant. (emphasis added))

26 Case: , 04/21/2016, ID: , DktEntry: 16, Page 26 of 33 claim under section 5(f) of the Admissions Act, and therefore, the proposed intervention is inappropriate. Id. Proposed Intervenors are not permitted to inject new, unrelated issues into the pending litigation. Id. at 1086 (emphasis added); see also Donnelly, 159 F.3d at (upholding a denial of intervention where the proposed claims were unrelated to the existing claims, and where resolution of the plaintiff s claims would not affect the applicant s claims). In sum, Proposed Intervenors ask this Court to mandate that the district court allow additional parties and briefing on issues that are not related to or are distinct from the claims being asserted. This, as the district court properly concluded, has the effect of improperly expand[ing] the suit well beyond the scope of the current action. ER 8. Proposed Intervenors do not have a significantly protectable interest at stake in this litigation, and, therefore, the district court did not err in denying the Motion to Intervene on such grounds. 2. The District Court Did Not Err in Concluding that the Disposition of the Action Does Not, as a Practical Matter, Impair or Impede Proposed Intervenors Ability to Protect their Interest The district court concluded below that Proposed Intervenors are not situated such that the disposition of the action may impair or impede their ability to protect the interests. Rulings by this court regarding [NA s] election and the requirements of Act 195 would be, at best, tangential to the Proposed Intervenors proposed claims their proposed claims are not at issue in this case. ER

27 Case: , 04/21/2016, ID: , DktEntry: 16, Page 27 of 33 (quotation marks, brackets, and citation omitted). Proposed Intervenors nevertheless assert that their interest in receiving benefits under [section] 5(f) will be impaired by the expenditure of [section] 5(f) funds on an election that is illegal and violates their Equal Protection rights. 6 Opening Brief at 20 (emphasis added). Assuming that Proposed Intervenors can overcome the threshold inquiry of establishing a significantly protectable interest, a ruling in favor of either the Plaintiffs or the Defendants would not impair their ability to protect their alleged interest as a person of one-half or more Indian blood or as a native Hawaiian beneficiary under section 5(f) of the Admissions Act. Indeed, in no way does the NA process threaten native Hawaiians continued receipt of benefits of section 5(f) of the Admission Act or preclude Proposed Intervenors from seeking tribal status as a person of one-half or more Indian blood with the federal government. 7 Accordingly, the disposition of the action will not impede or impair Proposed Intervenors interest, and the district court did not err in concluding as such. 6 Proposed Intervenors emphasis on the expenditure of section 5(f) trust funds for an election is misplaced as there are no longer any elections being conducted by NA. See supra part VII.A. 7 Again, Proposed Intervenors misconstrue the implications of Act 195, Act 77, and the NA process. There does not appear to be anything precluding Proposed Intervenors, as they sought in Kahawaiolaa v. Norton, 386 F.3d 1271 (2004), from seeking a political relationship with the federal government, particularly given the Department of Interior s proposed rules

28 Case: , 04/21/2016, ID: , DktEntry: 16, Page 28 of Proposed Intervenors Misconstrue the District Court s Citation to Similar Court Rulings Regarding Breach of Trust In its Order, the district court stated: Moreover, courts have already considered and rejected the Proposed Intervenors claims in similar cases. ER 9-10 (citations omitted). Proposed Intervenors interpret this statement as a conclusion that their claims were precluded under the doctrine of res judicata. See Opening Brief at 24. However, and despite the district court s clear conclusion that intervention as of right was inappropriate, Proposed Intervenors position is tenuous because, as discussed in detail, the district court simply acknowledged that similar breach of trust claims had been uniformly rejected in the past. ER The district court did not, as Proposed Intervenors appear to suggest, address the particular merits of their breach of trust claim as applied to the instant lawsuit. See Opening Brief at 24. To be clear, the Proposed Intervenors have been involved in several prior efforts to invalidate the actions of OHA and the State by arguing that they, as native Hawaiian beneficiaries of the Public Lands trust, were entitled to all of OHA s expenditure of trust funds. In Day v. Apoliona, for example, these same five individuals challenged OHA s expenditure of section 5(f) trust funds to benefit programs or initiatives (i.e., the Akaka Bill, the Native Hawaiian Legal Corporation, Na Pua No eau Education Program, and Alu Like, Inc.) that better the conditions of all Hawaiians,

29 Case: , 04/21/2016, ID: , DktEntry: 16, Page 29 of 33 regardless of blood quantum. 616 F.3d 918, (9th Cir. 2010), cert. denied, 562 U.S (2011). This Court concluded that the challenged expenditures of funds to benefit these programs were proper under federal law as federal law does not oblige the OHA Trustees to use trust proceeds only for native Hawaiians and the OHA Trustees had discretion to contribute [section] 5(f) trust funds to the challenged projects[.] Id. at (formatting altered). Similarly, in Kealoha v. Machado, the Hawai i Supreme Court affirmed a lower court s granting of a motion to dismiss plaintiffs complaint against OHA for alleged improper expenditure of section 5(f) trust funds Hawai i 62, 64, 315 P.3d 213, 215 (2013). Again, the OHA trustees argued that they had broad discretion in using section 5(f) funds. Id. at 75, 315 P.3d at 226. The Hawai i Supreme Court analyzed the statutory language, which required that certain trust funds be held and used solely... for the betterment of the conditions of native Hawaiians[,] and held that the legislative history and treatment of chapter 10 indicate that lawmakers did not view the term solely to be significant in describing OHA s expenditures of the pro rata portion of the public land trust. Id. at 75-76, 315 P.3d at Furthermore, the Hawai i Supreme Court expressly rejected the plaintiffs suggestion that OHA must administer said trust in the sole interest of the beneficiaries, except for collateral benefits to nonbeneficiaries, so 8 Proposed Intervenors, with the exception of Mel Hoomanawanui, were plaintiffs in Kealoha

30 Case: , 04/21/2016, ID: , DktEntry: 16, Page 30 of 33 long as the primary benefits of any action is [sic] enjoyed by beneficiaries, and the collateral benefits do not detract from nor reduce the benefits enjoyed by the beneficiaries. Id. at 79, 315 P.3d at 230. Thus, these cases are persuasive in that they reject the argument that section 5(f) trust funds must be used solely to benefit native Hawaiians. VIII. CONCLUSION For the foregoing reasons, this Court should dismiss the instant appeal or, in the alternative, affirm the district court s denial of the Motion to Intervene. Dated: April 21, 2016 WILLIAM MEHEULA NADINE Y. ANDO NATASHA L.N. BALDAUF SULLIVAN MEHEULA LEE A LIMITED LIABILITY LAW PARTNERSHIP 745 Fort Street, Suite 800 Honolulu, Hawai i (808) meheula@smlhawaii.com Counsel for Defendants-Appellees NA I AUPUNI and THE AKAMAI FOUNDATION Respectfully submitted, /s/ DAVID J. MINKIN DAVID J. MINKIN TROY J.H. ANDRADE JESSICA M. WAN MCCORRISTON MILLER MUKAI MACKINNON LLP Five Waterfront Plaza, 4 th Floor 500 Ala Moana Boulevard Honolulu, Hawai i (808) minkin@m4law.com andrade@m4law.com Counsel for Defendant-Appellee NA I AUPUNI

31 Case: , 04/21/2016, ID: , DktEntry: 16, Page 31 of 33 STATEMENT OF RELATED CASES Pursuant to Ninth Circuit Rule , Defendants-Appellees Na i Aupuni and The Akamai Foundation state that this matter, Case No , is related to an appeal from the district court s order denying the Plaintiffs preliminary injunction motion in Akina v. State of Hawai i, Case No , which is pending before this Court and currently scheduled concurrently for oral arguments on June 17, 2016, in Honolulu, Hawai i. Dated: April 21, 2016 /s/ DAVID J. MINKIN DAVID J. MINKIN Counsel for Defendant-Appellee NAʻI AUPUNI

32 Case: , 04/21/2016, ID: , DktEntry: 16, Page 32 of 33 CERTIFICATE OF COMPLIANCE The undersigned hereby certifies, pursuant to Federal Rule of Appellate Procedure Rule 32(a)(7)(B), that the attached Answering Brief is proportionally spaced, has a typeface of 14 points Times New Roman, and contains 5,848 words. Dated: April 21, 2016 /s/ DAVID J. MINKIN DAVID J. MINKIN Counsel for Defendant-Appellee NAʻI AUPUNI

33 Case: , 04/21/2016, ID: , DktEntry: 16, Page 33 of 33 CERTIFICATE OF SERVICE I hereby certify that the attached Answering Brief of Defendants-Appellees Na i Aupuni and The Akamai Foundation was electronically filed with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on April 21, I certify that all participants in the case are registered CM/ECF users and will be served by the appellate CM/ECF system. Dated: April 21, 2016 /s/ DAVID J. MINKIN DAVID J. MINKIN Counsel for Defendant-Appellee NAʻI AUPUNI