FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KELI’I AKINA; KEALII MAKEKAU; No. 15-17134
JOSEPH KENT; YOSHIMASA SEAN
MITSUI; PEDRO KANA’E GAPERO; D.C. No.
MELISSA LEINA’ALA MONIZ, 1:15-cv-00322-
Plaintiffs-Appellants, JMS-BMK
v.
STATE OF HAWAII; DAVID Y. IGE,
Governor; ROBERT K. LINDSEY, JR.,
Chairperson, Board of Trustees,
Office of Hawaiian Affairs, in his
official capacity; COLETTE Y.
MACHADO; PETER APO; HAUNANI
APOLIONA; ROWENA M.N. AKANA;
JOHN D. WAIHE’E, IV; CARMEN
HULU LINDSEY; DAN AHUNA;
LEINA’ALA AHU ISA, Trustees,
Office of Hawaiian Affairs, in their
official capacities; KAMANA’OPONO
CRABBE, Chief Executive Officer,
Office of Hawaiian Affairs, in his
official Capacity; JOHN D. WAIHE’E,
III, Chairman, Native Hawaiian Roll
Commission, in his official
Capacity; NA’ALEHU ANTHONY; LEI
KIHOI; ROBIN DANNER; MAHEALANI
WENDT, Commissioners, Native
Hawaiian Roll Commission, in their
2 AKINA V. STATE OF HAWAII
official capacities; CLYDE W.
NAMU’O, Executive Director, Native
Hawaiian Roll Commission, in his
official capacity; THE AKAMAI
FOUNDATION; THE NA‘I AUPUNI
FOUNDATION; DOE DEFENDANTS,
1–50,
Defendants-Appellees.
KELI’I AKINA; KEALII MAKEKAU; No. 15-17453
JOSEPH KENT; YOSHIMASA SEAN
MITSUI; PEDRO KANA’E GAPERO; D.C. No.
MELISSA LEINA’ALA MONIZ, 1:15-cv-00322-
Plaintiffs, JMS-BMK
v.
OPINION
STATE OF HAWAII; DAVID Y. IGE,
Governor; ROBERT K. LINDSEY, JR.,
Chairperson, Board of Trustees,
Office of Hawaiian Affairs, in his
official capacity; COLETTE Y.
MACHADO; PETER APO; HAUNANI
APOLIONA; ROWENA M.N. AKANA;
JOHN D. WAIHE’E, IV; CARMEN
HULU LINDSEY; DAN AHUNA;
LEINA’ALA AHU ISA, Trustees,
Office of Hawaiian Affairs, in their
official capacities; KAMANA’OPONO
CRABBE, Chief Executive Officer,
Office of Hawaiian Affairs, in his
official Capacity; JOHN D. WAIHE’E,
AKINA V. STATE OF HAWAII 3
III, Chairman, Native Hawaiian Roll
Commission, in his official
Capacity; NA’ALEHU ANTHONY; LEI
KIHOI; ROBIN DANNER; MAHEALANI
WENDT, Commissioners, Native
Hawaiian Roll Commission, in their
official capacities; CLYDE W.
NAMU’O, Executive Director, Native
Hawaiian Roll Commission, in his
official capacity; THE AKAMAI
FOUNDATION; THE NA‘I AUPUNI
FOUNDATION,
Defendants-Appellees,
v.
SAMUEL L. KEALOHA, JR.; VIRGIL E.
DAY; JOSIAH L. HOOHULI; PATRICK
L. KAHAWAIOLAA; MELVIN
HOOMANAWANUI, Proposed
Intervenors,
Movants-Appellants.
Appeal from the United States District Court
for the District of Hawaii
J. Michael Seabright, Chief Judge, Presiding
Argued and Submitted June 17, 2016
Honolulu, Hawaii
Filed August 29, 2016
4 AKINA V. STATE OF HAWAII
Before: Sidney R. Thomas, Chief Judge,
and Consuelo M. Callahan and Mary H. Murguia, Circuit
Judges.
Per Curiam Opinion
SUMMARY*
Civil Rights
The panel dismissed plaintiffs’ interlocutory appeal as
moot and affirmed the district court’s denial of a motion to
intervene in a lawsuit brought by Hawaii residents who
challenged efforts by a group of Native Hawaiians to
establish their own government, in accordance with measures
approved by the Hawaii Legislature.
Plaintiffs appealed from the district court’s order denying
their request for a preliminary injunction to stop activities
related to the drafting and ratification of self-governance
documents. The panel noted that the challenged election had
been cancelled, that plaintiffs did not argue that similar
elections will occur in the future, that a ratification vote on a
draft constitution had not been called and that no other
ratification elections were scheduled. The panel further noted
that one of the defendants had dissolved as a non-profit
corporation and any future election would likely be held by
an entity that was not a party to this litigation. Given those
changed circumstances, the panel concluded that the court
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
AKINA V. STATE OF HAWAII 5
could not provide any effective relief sought in the
preliminary injunction request. The panel held that plaintiffs’
appeal did not fall within an exception to the mootness
doctrine.
The panel also affirmed the district court’s denial of a
motion to intervene as of right in the plaintiffs’ underlying
lawsuit. The prospective intervenors, who qualified as Native
Hawaiians under a definition that was narrower than that
established by the Hawaii Legislature, sought to challenge the
more liberal definition, and the creation of a Native Hawaiian
government based on that definition, as well as the related
expenditure of state trust funds intended to benefit Native
Hawaiians. The panel held that to the extent that the
proposed intervenors sought to stop the delegate and
ratification elections, their appeal was moot. To the extent
they sought to intervene on other grounds, the panel agreed
with the district court that the prospective intervenors’
interests would not, as a practical matter, be impaired or
impeded as a result of the plaintiffs’ litigation. The panel
agreed that the proposed intervenors’ claims would raise
entirely different issues from those raised by the plaintiffs,
and that the proposed intervenors could adequately protect
their interests in separate litigation.
COUNSEL
Robert D. Popper (argued), Paul J. Orfanedes, Lauren M.
Burke, and Chris Fedeli, Judicial Watch, Inc., Washington,
D.C.; Michael A. Lilly, Ning Lilly & Jones, Honolulu,
Hawaii; H. Christopher Coates, Law Offices of H.
Christopher Coates, Charleston, South Carolina; for
Plaintiffs-Appellants.
6 AKINA V. STATE OF HAWAII
Kannon K. Shanmugam (argued), Ellen E. Oberwetter, Eli S.
Schlam, and Masha G. Hansford, Williams & Connolly LLP,
Washington, D.C.; Robert G. Klein, McCorriston Miller
Mukai MacKinnon LLP, Honolulu, Hawaii; for Defendants-
Appellees Robert K. Lindsey, Jr., Collette Y. Machado, Peter
Apo, Haunani Apoliona, Rowena Akana, John D. Waihe’e
IV, Carmen Hulu Lindsey, Dan Ahuna, Leina’ala Ahu Isa,
and Kamana’opono Crabbe.
Donna H. Kalama (argued), Girard D. Lau, and Robert T.
Nakatsuji, Deputy Attorneys General; Douglas S. Chin,
Attorney General; Department of the Attorney General,
Honolulu, Hawaii; for Defendants-Appellees State of Hawaii,
David Y. Ige, John D. Waihe’e III, Na’alehu Anthony, Lei
Kihoi, Robin Danner, Mahealani Wendt, and Clyde W.
Namu’o.
David J. Minkin (argued), Troy J.H. Andrade, and Jessica M.
Wan, McCorriston Miller Mukai MacKinnon LLP, Honolulu,
Hawaii; for Defendant-Appellee The Na‘i Aupuni
Foundation.
William Meheula, Nadine Y. Ando, and Natasha L.N.
Baldauf, Sullivan Meheula Lee LLLP, Honolulu, Hawaii, for
Defendants-Appellees The Na‘i Aupuni Foundation and The
Akamai Foundation.
Walter R. Schoettle (argued), Honolulu, Hawaii, for
Movants-Appellants.
Ilya Shapiro, Cato Institute, Washington, D.C.; Noel H.
Johnson, Kaylan L. Phillips, and Joseph A. Vanderhulst,
Public Interest Legal Foundation, Plainfield, Indiana; for
AKINA V. STATE OF HAWAII 7
Amici Curiae American Civil Rights Union and Cato
Institute.
Sam Hirsch, R. Justin Smith, Matthew R. Oakes, and Robert
P. Stockman, Attorneys; John C. Cruden, Assistant Attorney
General; Environment & Natural Resources Division, United
States Department of Justice, Washington, D.C.; Jody A.
Cummings, Scott Keep, Barbara N. Coen, and Daniel D.
Lewerenz; Hilary C. Tompkins, Solicitor; Office of the
Solicitor, United States Department of the Interior,
Washington, D.C.; for Amicus Curiae United States.
OPINION
PER CURIAM:
These appeals concern recent efforts by a group of Native
Hawaiians to establish their own government. The plaintiffs
are Hawaii residents who challenge that process. They appeal
the district court’s order denying their request for a
preliminary injunction to stop activities related to the drafting
and ratification of self-governance documents. Separately,
another group of Hawaii residents appeals the district court’s
denial of their motion to intervene in the plaintiffs’ lawsuit.
For the reasons that follow, we dismiss the plaintiffs’ appeal
of the preliminary injunction order as moot, and we affirm the
district court’s denial of the motion to intervene.
I.
In 2011, the Hawaii Legislature approved measures “to
provide for and to implement the recognition of the Native
Hawaiian people by means and methods that will facilitate
8 AKINA V. STATE OF HAWAII
their self-governance.” Haw. Rev. Stat. § 10H-2. The
legislation contemplated that Native Hawaiians may
“independently” host a convention “for the purpose of
organizing themselves.” Id. § 10H-5. The legislation also
established a commission to maintain “a roll of qualified
Native Hawaiians” who are descendants of the indigenous
peoples who founded the Hawaiian nation. Id. § 10H-3.1
Na