Reasons to be hopeful after the ICAʻs decision on UHʻs CMP for Mauna Kea

Aloha Mauna Kea `Ohana,

As you may have already heard the Intermediate Court of Appeals (ICA) recently handed down their decision regarding the Mauna Kea Hui’s request for a contested case on the University’s “Comprehensive Management Plan” (CMP) approved by the State Board of Land and Natural Resources (BLNR) in 2009.

While it is true that the court did not grant us a contested case hearing on the UH CMP, they did confirm our longstanding concern with the plan: that it does nothing in and of itself to address the substantial and significant adverse impacts of telescope construction on the natural and cultural resources of the mountain. Read the decision here.

We are still waiting to hear from the BLNRʻs Hearing Officer (HO) on the outcome of our contested case hearing on the Thirty Meter Telescope (TMT). Mahalo to all of you who attended those hearings and supported us through that whole process last summer and fall. After the Hearing Officer makes his decision on whether to grant the TMT a building permit, then the BLNR will decide whether to approve, modify or deny the HOʻs decision. Pending the outcome of BLNR’s final decision the various parties may decide to appeal further into the courts.

The Kupuna say we win when we speak truth and stand for justice and Aloha. We are very proud we made a stand in the ICA and we are very proud of our Marti who took this case as her first court case for which she did an outstanding job!

In over a decade no telescopes have been built or allowed to destroy more of the sacred and precious landscape of Mauna Kea—and this is a win.

Further, the National Science Foundation (NSF) has decided not to fund the TMT Project. And contrary to the press reports, China and India’s contribution is still not enough to complete the project—and it was reported previously that their contribution was dependent on NSF contributions. It is unclear whether the TMT has any significant funding--without funding, the TMT cannot be built.

So there is still much to do and to continue to have hope for…hope for the land and the people and every reason to continue to speak the truth and to stand for pono action. And we will continue to stand for Aloha and for Mauna Kea!

Setting the record straight –and we ask all to please beware of the misinformation and hype.
Contrary to the assertions made in the press by the UH, the ICA decision did not uphold the UH CMP nor did it give the TMT a green light for construction atop Mauna Kea. What is true is that the court affirmed that the UHH has no way to actually implement their plan. That is to say, no actions can occur and the plan then is no more than a set of “future considerations”. This in no way can be construed as a green light for building the TMT on Mauna Kea—so don’t believe the hype!

According to the court no action means, no disturbance to the land and hence no one’s rights can be affected (this is not a position we fully agree with, since the UH plan does propose closing the MK access road (from sunset to dawn) and also proposes to regulate cultural practice by granting the UH sweeping authority to decide what is “appropriate” cultural practice and when cultural activities can or cannot occur. We do not believe only land altering activities infringe on the rights of the public or Native Hawaiian because closing us off the mountain would unequally impact our rights to worship and the public right to access Mauna Kea.

To be clear, we asked for an opportunity to be heard (via the contested case hearing) because without a contested case hearing the BLNR decision makers only have public testimony (usually limited to 3 minutes per person) thus there is no opportunity to review evidence or to hear expert testimony. Decision makers cannot make informed decisions if they don’t have all the information. In this case the court did not agree that approving a management plan triggers the right to a contested case hearing—on the logic that the UH needs additional approval and authority to take any action proposed in the management plan. If additional approval is ever granted to UH to take action on Mauna Kea, we will be there to make sure the natural and cultural resources of the mountain -- and rights of the public and Native Hawaiians -- are protected.

NO New Paradigm—the plan does nothing!
The court confirmed the UH has no authority to implement the CMP and therefore the plan for all intents and purposes does nothing (good or bad). If this is the case then the UH can’t claim they are “doing” everything right this time with the TMT, like protecting cultural rights and resources or protecting the delicate environs of Mauna Kea—so the court confirmed it is not a new day and there is no new paradigm—as the UH would have us all believe-beware the hype!

A review of our cases thus far:
Many people have been asking us to provide a simplified version of the history of Mauna Kea court battles—we have them below for you to review.

As many of you may remember, in the first case which was held in federal court we asked the court to affirm that the National Aeronautics and Space Administration (NASA) needed to conduct a federal environmental impact statement (EIS) prior to the construction of the 4 to 6 telescopes NASA was proposing to build on the summit of Mauna Kea. The court affirmed our case and NASA was compelled to complete an EIS. This would be the first federal level EIS ever conducted in the 40 some odd years that telescopes have been operating atop Mauna Kea. In the end the cumulative impact assessment of the NASA EIS concluded that thirty years of astronomy development has resulted in “adverse, significant and substantial” impact to the cultural and natural resources of Mauna Kea.

While we awaited the ruling of the federal court on the NASA case we were engaged in a contested case hearing, contesting the State’s (BLNR’s) decision to give the University and NASA permission to build up to 6 more telescopes on the summit. Then in 2003, we appealed the stateʻs decision and again the court sided with us, affirming that there was no comprehensive management plan to protect the cultural and natural resources to support the construction of any new projects on Mauna Kea let alone the NASA project. The court vacated the construction permit. After the court’s decision, NASA pulled the funds for the multiple telescopes project and the project was never to be built on Mauna Kea or anywhere else.

In the meantime, the University decided to hire a public relations corporation (Ku`iwalu Inc.) to write up a management plan now known as the “University’s Comprehensive Management Plan” instead of waiting for the State to complete the management plan for Mauna Kea. The state claimed that they had no money to do a plan. Herein is the big problem, the State has a duty to the people and their resources, because the state was put in place to protect the rights and resources of Native Hawaiians and the general public on all public lands in Hawai`i (that is a trustee condition provided under the Admissions Act, a federal law). Developers and corporations on the other hand are responsible to their owners and shareholders and not to Native Hawaiians or the public. This was the beginning of the ICA case.

While the ICA case was pending the UH and the TMT Corporation rather than waiting for the ICA case to review the CMP (and perhaps in an effort to burden us by forcing us to fight on two fronts –in two separate courts) they requested a permit from BLNR to construct the giant TMT. At that point we requested a contested case hearing and that was granted. As we stated above we now await the Hearing Officerʻs decision on this case.

What is important to note is that the TMT Corporation seeking the permit (using the UH to front for them) has responsibilities to their owners and shareholders and the residents of California where they are incorporated. The TMT has no legal responsibilities to the people of Hawai`i. The TMT would have a giant footprint (over 9 acres in total) and is so big it can’t even fit on the actual summit. If built it will destroy the sacred and delicate landscape, impact the view planes and alignments to and from sacred sites from around the islands to Mauna Kea and from Mauna Kea outward, and it will impact cultural practices exercised on the summit and surrounding areas and will obstruct sunset view planes from the summit as well as views from sea level looking up and those from the ocean.

We continue our strong stand for Aloha `Aina. We ask you to continue to stand with us supporting Aloha `Aina moving for a more beautiful, clean, healthful, sustainable and just Hawai`i!

Aloha no,
Kealoha Pisciotta, President
Mauna Kea Anaina Hou