Hawai'i Supreme Court considers Mauna Kea astronomy development

Update: The Supreme Court oral arguments took place on September 22, 2022. You can watch the arguments in their entirety here. KHON also posted a video summary here. 

BACKGROUND: Three years ago, Kuulei Higashi Kanahele and Ahiena Kanahele petitioned the Land Use Commission for a declaration that industrial astronomy uses transformed the conservation district into a de facto urban district. After several days of hearings in Hilo, the LUC decided it lacked jurisdiction over the petition. Two commissioners dissented, including Chair Jonathan Likeke Scheuer whose opinion was recorded in the LUCʻs findings:

"The case -- the petition before us — brings up novel issues never litigated before. The University of Hawaii's attorney admitted as much. We're not relitigating Mauna Kea II here.

The petition has brought up some irony, and I don't think I've been in a room where Hawaiian nationals agreed with the State of Hawai'i Office of Planning that we had no jurisdiction, but here we are. lthough, of course, they think we have no jurisdiction for very different issues.
I find myself thinking of the day when the Office of Hawaiian Affairs took formal ownership of Wao Kele o Puna on this island, 25,000 acres of so-called ceded lands that were taken by the revolutionary government, ceded to the federal government and then to the state, and the state later sold them to a private entity. I think it remains, on this island, the site of the largest number of arrests for civil disobedience — when people were protesting the development of geothermal energy at Wao Kele o Puna.

And decades later, we managed to take it into protective ownership for permanent protection. And at that ceremony, Haunani Apoliona asked "How can the past not be a trap, but be a liberation?"

I ask: You know, are we, all of us, maoli, haole, are we brave enough, are we creative enough to see our way through the current standoff and find a Hawai'i that is far better than we can even dare to imagine now? I know some people, and I don't live on this island, and so, really, I have a great deference for what Commissioner Cabral has said. I know some people are feeling a schism and perhaps an unprecedented schism. I actually take the point of view, however, that it's not that things are getting worse, but things are being revealed that have been hidden for too long.

If we first look backwards and we ask how did we get here, I really believe the statements of testifiers Shelley Muneoka and Debbie Ward that had the University of Hawai'i come to this body with our powers originally, we would not be in the mess we are now. It's a shame.
So jurisdictional issues aside, I think we have a clear picture that if they had followed the proper process, this process, we would not be in the dilemma we are now. And I say that because I come to it from an understanding of the law that this commission is charged with implementing. Why did Hawaii pass, which has become HRS 205, the only comprehensive land use law among the 50 states?

So it's 1961, two years after statehood, jet engines just invented. So we're getting this tremendous economic pressure; right? We just had the democratic -- so-called democratic revolution. So, finally, after more time since anytime since 1893, the average person in Hawai'i had some say over how government was going. And, yet, all the land in Hawai'i was still largely owned by the Big Five or the state.
So we passed this law to try to give the people this wedge, this step in being able to approve how our state moves forward and how our land is taken care of. And we set these four districts, three at the time. We added rural later.

And really one of the things that this process allows, it does not say that what is in conservation shall be permanently protected. Our land use law does not say `that we will never harm the public trust'. But, actually, what it says is — it gives us the process by which, as a society, we can say: you know what? We need to do something for the collective good. It will cause harm. It will cause permanent harm. It will cause irrevocable harm. That harm may be disproportionate to one community or one group. But we're allowed to go through the district boundary amendment to thoughtfully consider those impacts.

And to quote the Hawai'i Supreme Court in Waiahole, 'the state may compromise public rights in a resource pursuant only to a decision that is made with a level of openness, diligence and foresight commensurate with the high priority that these rights command under the laws of our state."'

Instead, what we've had is incremental decision-making, CDUP by CDUP by CDUP with no one ever looking at the entirety of the summit and the impacts. That process — very clearly from the record of this proceeding — does not allow for that possibility, even if cumulative impacts were looked at in the last CDUP issued.

The permit itself says: here's the conditions that will be addressed by the new telescope. Here's the conditions that will be addressed by the state, but these conditions are all severable. So we can go forward without any addressing of the comprehensive impacts.
To me, this question -- this petition focuses on two issues. One is, is it urban? Are the collection of these uses urban? And for me, you know, if it look likes a duck, it quacks like a duck, it's a duck. The summit no longer looks like a conservation district even if individually, clearly, individual telescopes are allowed to exist in a conservation district.

And the second issue is do we have jurisdiction? You know, I respectfully hear and listened to the arguments of my fellow commissioners, but I can't reconcile that against the obvious language in 205-2 that defines what's in the conservation district.
And if it's not up to this commission to ensure that the four districts' lines are respected, I don't know who it's up to? There's not a case -- there's not an ability to go on a single CDUP in front of the BLNR and contest the entirety of their actions that are all the previous ones. There's no avenue.

So somebody has to do it, and maybe I'm wrong -- I'm wrong every day usually before I get out of bed. So I could well be wrong on this one.
But I'd rather be told that I'm wrong by the courts, that you overreached our protective actions of the statute - than to be overly cautious, and not be told.

And so I actually hope that this gets appealed because I think this commission really needs clarity on what the limits are of our abilities and our protections.

The last thing I'll say before we vote, I just want to, for the record, wholly reject two statements that were made on the record by witnesses. As I mentioned before in discussions, the assertions by the deputy attorney general for the State Office of Planning, that the only district — distinction between our land use districts was the level of how difficult it was to get a permit would make -- if you implemented that, it would make a mockery of our entire land use scheme work. And I would also reject the discussion that was made by a member of Mauna Kea Management that said that we can't find solutions in a regulatory process. I think the dilemma that we have had is that we've had all these listening sessions and these soft processes where people's individual rights and collective rights can't be addressed. And that a regulatory process like the LUC's DBA process is actually the avenue to give finality to the rights that the people have."

http://kahea.org/protesters-challenge-mauna-kea-2018industrial-uses2019