Mauna Kea Update: Appeal before the ICA

From Marti:

Yesterday, the Mauna Kea hui (Mauna Kea Anaina Hou, Royal Order of Kamehameha I, Sierra Club, KAHEA, and Clarence Kukauakahi Ching) filed the opening brief in our appeal to the Intermediate Court of Appeals challenging the Comprehensive Management Plan (CMP) for Mauna Kea.  The Circuit Court had denied our case on the theory that the CMP didn’t actually do anything to affect the summit.

If the CMP doesn’t do anything to affect the summit, then how can the University of Hawaii proceed with its proposal to build the Thirty Meter Telescope?  Answer: they can’t.

The University of Hawaii — the sole creator, proponent and implementer of the CMP — simply can’t have it both ways. Either the CMP meets the legal requirements for construction in a conservation district and therefore does “something”… a “something” for which rightholders like the Mauna Kea hui can ask a court review.  OR… the CMP doesn’t actually do anything, and therefore doesn’t meet the pre-requisite that a conservation district have comprehensive management before anything is built there … thus prohibiting the construction of a new massive telescope.

Here is the introduction to the hui’s opening brief:

This case is about the Board of Land and Natural Resources’ (“BLNR”) preferential treatment of the University of Hawai‘i’s astronomy program and its complete disregard for the protected rights of Native Hawaiian and other users of the summit of Mauna Kea.  On its face, the University of Hawai‘i’s Mauna Kea Comprehensive Management Plan (“CMP”) purports to broadly and actively regulate all uses of the Conservation District of Mauna Kea’s summit, including the religious, cultural, and recreational activities of the Mauna Kea Appellants.  But the BLNR chose to completely ignore the CMP’s impact on Mauna Kea Appellants’ rights, duties and privileges.  Contrary to its obligations under Hawai‘i Revised Statutes (“HRS”) Chapter 91 and Department of Land and Natural Resources (“DLNR”) regulations, (Hawai‘i Administration Rules (“H.A.R.”) §§ 13-1-28 – 13-1-40), the BLNR issued its final decision to approve the CMP without holding a full and formal contested case proceeding. Record on Appeal, 2009 (“ROA-2009″) at 20-27.

The Mauna Kea Appellants appealed the BLNR’s final decisions to the Third Circuit Court of Hawai‘i (“Circuit Court”).  ROA-2009 at 1-15.  Appellees BLNR and the UH entities refused to transmit the administrative record to the Circuit Court and instead filed a Motion to Dismiss the appeal.  ROA-2009 at 254-265, 268-282.  Incredibly, the Circuit Court determined, without ever reviewing the CMP or the rest of the administrative record, that the CMP was a harmless “unimplemented” document and dismissed the appeal for lack of jurisdiction.  ROA-2009 at 369-372; Record on Appeal, 2010 (“ROA-2010″)  at 1-9.

The Mauna Kea Appellants respectfully request that this Court reverse the Circuit Court’s order and remand this case to the Circuit Court: (1) with a finding that the Circuit Court has jurisdiction, under HRS § 91-14 and/or H.A.R. § 13-5-3 to review Appellants’ appeal from the BLNR’s final decisions; or, alternatively, (2) with a finding that the Circuit Court misapplied the standard of review for a motion to dismiss for lack of subject matter jurisdiction, particularly where the issue of subject matter jurisdiction is intertwined with the merits of the Appellants’ appeal.

In other words, please give the Mauna Kea hui its day in court.  Here is a link to the full opening brief.

Big mahalo to our attorneys, Colin Yost and Elizabeth Dunne, for working so hard on our behalf.