I thought I would take a little time to respond to some of the questions raised about my reporting on the land occupation in Kunia supported by Occupied Forces Hawaii Army.

There are several reasons I’ve been following this case. Here’s reason #1. All land titles in Hawaii can be traced back to the land distributions at the time of the Mahele of 1848. So the idea behind the Kunia land occupation–that descendants of original land grant recipients retain an ownership interest in that land that can be asserted today and that is superior to modern titles–puts every property in the state, each and every home or business, whether owned by Hawaiians or non-Hawaiians, at risk of similar baseless challenges.

The unsettling thing is that this isn’t a belief held only by a small group like the couple of dozen people involved in the Kunia land takeover. Comments on social media indicate a wider audience.

Of course, the idea is based on misunderstandings or, worse, misrepresentations of land titles. Those early land grants, like modern deeds, provided title in perpetuity, but also provided that the owner could sell, mortgage, transfer, or otherwise dispose of their property without answering to others. And when real property is transferred, that title transfers to the new owner and his/her heirs “in perpetuity” unless and until it changes hands again.

I can trace my own family back to a land commission grant in 1855 to my great grandfather. Does that allow me to claim a “superior” title to the current legal owner? Obviously not.

So the theory that modern land titles can be claimed on the basis of “heirdom” is simply wrong. One of my underlying interests is how this idea is being spread and popularized.

In the past, this kind of idea has often been associated with a scam or con pitched to people facing financial or legal hardships who are desperate for ways of pushing back. This case has many of the same trappings of people who claimed taxes are “voluntary” and were willing to sell you the book and the tax forms to make Uncle Sam stop taking your hard earned dollars. Unfortunately, it just meant more of that money went to the con artist selling the idea, while the suckers got stuck with the legal liability of nonpayment of taxes.

A decade ago, a Maui group active across the state presented workshops on genealogy and land titles, and then solicited payments in exchange for their packet of paperwork they claimed could be used to stop foreclosures and pay off mortgage debts. They were convicted, most served time in federal prison, and at least one is still in prison after violating the terms of her supervised release.

Whenever and wherever people are desperate, encouraged to distrust and reject all authority, and to suspend disbelief in things that seem to good to be true, they create the conditions in which con artists and fraudsters thrive.

One con artist who I tracked for several decades would offer his services to people in trouble with the IRS or facing foreclosure. Part of his pitch went something like this: “I’m not a lawyer, but that’s why I can help you in court. Lawyers have a code of ethics they must follow. And since I’m not a lawyer, I’m not bound by those ethics.”

As a non-lawyer, he couldn’t go to court to represent someone facing a foreclosure lawsuit by their lender. So he instructed people that he needed to take at least a partial interest in their property “on paper,” while promising he would return it whenever they requested. He would often trade, handing over bogus title to another property in exchange for taking part of his “client’s” property.

I remember talking to a women who had initially turned over a part interest in her condominium, which was threatened with foreclosure. This allowed the non-lawyer to appear in court representing himself, as an owner. After some time, he went back to the woman and told her the court was cracking down on fraudulent property transfers, so they needed to do more to make it look legit. To do this, he told her to just sign over all her interest, and then move out, of course promising that this would only be temporary and could be reversed whenever she asked

He was very effective in court, at least in stalling court cases, often for years. What he did would now be called “paper terrorism.” Taking advantage of the typical deference of judges when dealing with non-lawyers representing themselves pro se, he would file document after document, each long, dense, and most often irrelevant or nonsensical, alleging all sorts of “facts” and making up legal citations. Because of the way the courts work, whenever one argument was rejected, he would seek reconsideration, then would appeal, then would file more pseudo-legal gobbledygook and start the process again.

And by the time the condo owner figured out she was being conned, he laughed and threatened to turn her in to authorities for trying to defraud the court and the lender. And, of course, he had all the evidence because he was part of the fraud. When push came to shove, he would send a packet of evidence to the IRS, claiming to be a fraud investigator.

So here’s a question I can’t really answer. Are the participants in the Kunia land occupation con artists, like the one I described in the last few paragraphs, or are they more akin to the condominium owner who took the bait, believed what she was told, who distrusted lawyers who warned her not to do it, and walked right into the deal, only to be ripped off as a result. In the Kunia case, who’s running the con, and who’s getting conned?

And finally, several people have asked why I haven’t jumped on Tom Berg, the former Honolulu city council member now employed as a land manager by the property owner of the Kuna agricultural park, and adjoining golf course, where this land seizure has played out.

For example, one person using the name “Caddyshack Rambo” commented:

While your continued exploration of this colorful saga is much appreciated, I respectfully suggest that you’ve ventured far into the thickets of nonsense claims and rhetorical excess while glossing over the apparent armed confrontation and another violent encounter at the subject property that could definitely stand more scrutiny and explanation.

Pointing a pistol at another person is a Very Big Deal, and it remains unclear why golf course and land manager Tom Berg was not arrested after doing so in the photograph that accompanies your new Civil Beat story. (And it is a photograph, not a screenshot of a video as mislabeled in the caption.) Hawaii News Now has reported that Berg claimed the pistol was an air gun, but even if true — and that’s certainly not clear, and your story doesn’t touch it — does that really make it OK? Today’s air guns are quite powerful weapons and have been used in plenty of crimes and assaults.

Following the incident, two people filed applications for temporary restraining orders, saying they feared for their safety and the safety of their families after Berg pointed a pistol at them.

Both TRO applications described Berg having been caught snooping on their “private property” for at least six months.

According to one applicant: “Myself and my family live at 94-405 Kunia Rd. Waipahu, HI 96797, a property that the mother of my children is an owner of.”

Neither mentioned Berg was the agent for the legal landowner sent to check what was happening on the land.

In any case, a court hearing was held on the two TRO applications. Each of the petitioners testified and gave their evidence. Then Berg had his opportunity. According to court minutes, he brought and displayed a video of the full encounter, in which he was harassed and threatened as he walked through the 30-acre parcel that had been seized by the group. I haven’t seen the video, but have to surmise it showed that what actually took place was substantially different from what had been claimed in the TRO applications, with Berg now seen as a victim rather than simply a pistol-toting aggressor. The judge in the case not only threw out the restraining orders against Berg, but also assessed the applicants $2,500 to pay his legal fees and costs. That’s not something I’ve seen before while digging through court records on different stories.