Remember the Maunakea Stewardship and Oversight Authority?

E nā kiaʻi mauna, you, like us, may have some lingering questions about the newly assembled Maunakea Stewardship and Oversight Authority (MKSOA) and what it means for the proposed Thirty-Meter Telescope. We did some digging and wanted to share with you what we found, including some issues that we could use your help tracking as we all work to hold the MKSOA accountable.

What is the MKSOA?

In 2021, the Speaker of the Hawaiʻi State House of Representatives, Scott Saiki, assembled a Maunakea management authority working group, which produced a report, “He Lā Hou Kēia Ma Mauna a Wākea: A New Day on Mauna A Wakea.” That working group recommended the creation of the administrative body that would become the MKSOA.[3]

In 2022, Governor Ige signed Act 255, establishing the Maunakea Stewardship and Oversight Authority (MKSOA). KAHEA generally opposed the MKSOA, and its earlier legislative forms.[1] Initially we were concerned that decision making power would be concentrated in a single group appointed by the governor. We were also concerned that the creation of this body would create momentum for the building of TMT and signal to a wider faction of pro-industrial astronomy interests that the state had a solution to the “Mauna Kea issue.” [2] While we continue to hold these concerns about the MKSOA, we are also heartened that the authority includes members with unquestioned commitments to the protection of Mauna Kea.

Who is the MKSOA?

The MKSOA is a twelve person governing body, with 11 appointed individuals and the University of Hawaiʻi Hilo chancellor, who is a non-voting member. The MKSOA is said to serve as the “principal authority for the management of state-managed lands within the Mauna Kea lands.” These lands comprise 11,288 acres under General Lease S-4191 and 19.61 acres under General Lease No. S-5529 (Hale Pōhaku area).

Seven of the members and the MKSOA chairperson are appointed by the governor and confirmed by the senate. A majority of all members must be in agreement to make any MKSOA action valid. HRS §195H-3. Members can serve no more than three partial or full three-year terms. Current members are:

1. Douglass Shipman Adams, serving in the ex-officio seat for the mayor of the County of Hawaiʻi, or the mayor’s designee. Adams was designated by Hawai‘i Mayor Mitch Roth.
2. Eugene Bal III, serving in the ex-officio seat for the chair of the University of Hawai‘i Board of Regents, Bal was designated by UH Regent chair, Randy Moore.
3. Kamanamaikalani Beamer serves as the member with ʻāina resource management expertise and specific experience with Hawaiʻi island‑based management. Beamer is a UH professor at the Kamakakūokalani Center for Hawaiian Studies.
4. Pomaikai Bertelmann serves as the member who is a lineal descendent of a practitioner of Native Hawaiian traditional and customary practices associated with Mauna Kea. She works with the Polynesian Voyaging Society and is a middle school instructor at Kanu o Ka ʻĀina Charter School.
5. Dawn Chang serves in the ex-officio seat for the chairperson of the Department of Land and Natural Resources.
6. Paul Horner serves as a member submitted by the President of the Senate. Horner is a NāLeo television executive.
7. John Komeiji serves as the member with business and finance experience who has previous administrative experience in managing a large private-sector business. Komeji is a vice president and general counsel for Kamehameha Schools. He is the MKSOA chairperson.
8. Kalehua Krug serves as the member who is recognized as possessing expertise in the fields of preschool through 12th-grade public education or post-secondary education. Krug is the principal of Ka Waihona o Ka Na‘auao public charter school in Wai‘anae.
9. Lanakila Mangauil serves as the member who is a recognized practitioner of Native Hawaiian traditional and customary practices.
10. Rich Matsuda serves as a member submitted by Mauna Kea Observatories.
11. Noe Noe Wong-Wilson serves a member submitted by the Speaker of the House of Representatives.
12. Bonnie Irwin is the non-voting UH Hilo chancellor.
    
    

How does the MKSOA operate?

The MKSOA is subject to the Sunshine Law (Hawai‘i Revised Statutes (HRS) chapter 92), which means that it is required to hold open meetings, post its agendas and invite the public to its deliberations. Its decided actions may be challenged in ways similar to that of other agencies. The exact procedures for participation in MKSOA proceedings and challenges to its actions have not yet been established, and will likely be included in rules that the MKSOA makes later on. Like BLNR actions on conservation lands, appeals from MKSOA contested case proceedings are made directly to the Hawai‘i supreme court.

The MKSOA is housed within the Department of Land and Natural Resources (DLNR), but does not have the DLNR chairperson as its head, nor does it depend on inclusion in the DLNR’s budget. MKSOA can hire their own attorneys and does not need to only rely on the attorney general for representation.

In addition to the 12 members described above, MKSOA also has six, full time temporary positions and a $14 million budget. See House Bill 300, 2023 Hawai‘i Session Laws.

What important processes are the MKSOA involved in now, and what important decisions lie ahead that might include the MKSOA?

Currently the MKSOA is in the process of taking over management of BLNR Mauna Kea lands, which include those leased to the University of Hawaiʻi. In the future, we anticipate that at least two important issues will be influenced by the MKSOA: the University of Hawaii’s General Lease S-4191 ending on December 31, 2033, and the Mauna Kea conservation district use permits.

What can we expect to happen next?

Currently, the Board of Land and Natural Resources(BLNR) holds Mauna Kea lands in trust. BLNR is leasing these lands to the University of Hawai‘i under various easements, including General Lease S-4191 (the 65-year lease). Under Act 255 (which established the MKSOA), the MKSOA is supposed to take over the management of these lands from UH over the course of five years. During a five year transition period, which begins July 1, 2023, UH and MKSOA will “jointly manage” Mauna Kea lands, with UH’s center of Mauna Kea stewardship taking over daily operations.

Also during the five-year transition period, MKSOA is supposed to adopt a management plan, “take any actions necessary to prepare for the assumption of total authority over Mauna Kea lands at the end of the transition period, including the adoption of rules”, and develop a “financial plan that strives for the financial self-sustainability of the authority” within a year after the transition period. It should be noted that the financial plan cannot include selling, gifting, transferring, or exchanging land. As transactions around land would be a way to generate revenue, it will be important for us to watch how MKSOA attempts financial sustainability – whether through increased sublease and lease rents from the observatories, commercial use permitting, and/ or other money-making ventures.

The issue of conservation districts:

A lot about the transition to MKSOA management is unclear because the relationship between MKSOA and the DLNR is undefined. The legislature itself recognized this lack of clarity, when passing Act 255, by stating that “amendments and additions will need to be made in future legislative sessions[.]” This lack of clarity is especially important when it comes to the issue of permitting. Act 255 does not specifically address whether MKSOA’s “total authority” over Mauna Kea lands includes conservation district use permitting.

It remains unclear how MKSOA and DLNR will sort out management of “Mauna Kea lands” that are part of the conservation district, including the proposed site of the TMT. Act 255 does not designate any ultimate authority when it comes to the conservation district (HRS chapter 183C), and what follows is the closest thing to language clarifying the MKSOA’s powers in conservation district and in relation to DLNR:

• (b)Notwithstanding any other law to the contrary, the authority shall:
• (1)Be the principal authority for the management of state-managed lands within the Mauna Kea lands; HRS §195H-5(b)(1).

How do we make sense of this law? It pivots on whether there is conflict between making MKSOA the “principal authority” for management and allowing DLNR to conduct conservation district permitting. Existing laws already give DLNR the power to do conservation district permitting. MKSOA cannot cancel out the authority of other bodies established by law. So DLNR retains its authority to do conservation district permitting. MKSOA would not displace DLNR in that regard.

In a related concern, because the MKSOA will have “all powers and duties of . . . the land use commission pursuant to chapter 205”, MKSOA could theoretically transfer Mauna Kea lands out of the conservation land use district after the five-year transition period. If it did so, and placed all of Mauna Kea land in the agricultural, urban, or rural districts, any of DLNR’s authority over conservation district use permitting would be moot. We’re not saying MKSOA would remove the lands from a conservation district, but it is a power they are explicitly granted.

That is all to say that any future permits on Mauna Kea will still likely need approval from the DLNR. But, there is a chance that the MKSOA could remove Mauna Kea from a conservation district and put itself in charge of future permitting.

Another issue we are following: UH's general lease

While HRS chapter 195H does not specifically revoke UH’s general lease, it does provide for a “transition” of power from DLNR, UH, “and all other departments and agencies of the State” to MKSOA “with regard to the control and management of Mauna Kea lands.” So, for practical purposes, even though UH may still have its general lease, it will not control and manage the lands. Rather, UH is only to be a joint manager for five-years or less. Nothing, however, expressly cancels or invalidates UH’s general lease or establishes that it could not obtain a lease again from the MKSOA.

After the five-year transition period, if not sooner, the MKSOA will obtain “all powers and duties of the board of land and natural resources pursuant to chapter 171, . . . concerning permits, dispositions, land use approvals, and any other approvals pertaining to the Mauna Kea lands”. Chapter 171 refers to laws governing Hawai‘i public lands, including (un)ceded lands, and is usually implemented by BLNR. With these powers MKSOA can make long-term leases, short-term month-to-month permits for land use, easements, and rights of entry, amongst other things, but not transfers or exchanges of Mauna Kea lands.

This means DLNR and UH no longer have control over these lands. MKSOA would be the entity to decide if/when another general lease could be issued.

What to do next to keep MKSOA accountable to the protection of Mauna Kea:

We should all keep an eye on MKSOA. A lot is still not known. How are they going to manage Mauna Kea lands? What will be in their management plan? How are they going to become financially sustainable? Who will serve on the Authority and as their key staff? Specifically, we should keep track of who is on the MKSOA, how the MKSOA develops its internal rules, what eventually ends up in its financial plan, and especially their management plan.

We encourage you to reach out to us, if you have questions. Or better yet, ask them of MKSOA. Their meetings are livestreamed at: https://www.youtube.com/@maunakeaauthority

And you can get notices of MKSOA meeting agendas by sending an email to mka@testimony@hawaii.gov MKSOA is not administratively up and running yet though so you may not get an immediate response. In the meantime, you can mark in your calendars that MKSOA board meetings are held every 2nd Thursday of the month from 10am-12pm, with their agendas posted at: dlnr.hawaii.gov/maunakea-authority/

[1]See e.g. KAHEA “Managing Opposition to the TMT” (Apr. 4, 2021) available at: kahea.org/managing-hawaiian-opposition-to-the-tmt; Testimony of KAHEA: The Hawaiian-Environmental Alliance in OPPOSITION to HB2024, Relating to Mauna Kea (Feb. 16, 2022) available at: kahea.org/files/OppHB20242.17.22.pdf; Testimony of KAHEA: The Hawaiian-Environmental Alliance in Opposition to S.B. 3090, S.D.1, at 140 (Feb. 22, 2018) available at: www.capitol.hawaii.gov/sessions/Session2018/Testimony/SB3090_SD1_TESTIMONY_WAM_02-23-18_.PDF

[2] See e.g. Nadia Drake, “Maunakea’s Controversial Telescopes are Getting New Management,” Scientific American (Jul. 14, 2022) available at: www.scientificamerican.com/article/maunakea-rsquo-s-controversial-telescopes-are-getting-new-management/ “some astronomers are now more optimistic and say the new legislation defines the right way forward); Mark Zastrow “Path forward for Thirty Meter Telescope and Mauna Kea begins to emerge,” Astronomy (Mar. 29, 2023) available at: www.astronomy.com/science/path-forward-for-thirty-meter-telescope-and-mauna-kea-begins-to-emerge/"; Guillermo Molero “On a stunning Hawaiian mountain, the fight over telescopes is nearing a peaceful end,” NPR (Jul. 31, 2022) available at: www.npr.org/2022/07/31/1114314076/hawaii-mauna-kea-telescope-space-observatory; Monica Young, “Years of tensions at Mauna Kea may end with peaceful negotiations” Sky & Telescope: The Essential Guide to Astronomy (Aug. 31, 2022) available at: skyandtelescope.org/astronomy-news/years-of-tensions-at-mauna-kea-may-end-with-peaceful-negotations/".

[3] See “He Lā Hou Kēia Ma Mauna a Wākea: A New Day on Mauna A Wakea” (Dec. 17, 2021) available at: www.capitol.hawaii.gov/CommitteeFiles/Special/MKWG/Document/MKWG%20Draft%20Report%2012-17-2021.pdf.

[4] See State v. Schnabel, 127 Hawai‘i 432, 448, 279 P.3d 1237, 1253 (2012) (When interpreting “notwithstanding any other law to the contrary” clauses, “[t]he term ‘contrary’ denotes a ‘conflict.’”).