KAHEA—The Hawaiian Environmental Alliance was one of the appellants in the Supreme Court case. Board member Bianca Isaki told The Independent that, “KAHEA works on oceans advocacy and public access across various issues. The Kyo-ya case was not something KAHEA would typically find squarely in its mission of Hawaiian and environmental protections, but the proposal was so outrageous that we felt allowing the city and county to get away with approving it would set a terrible precedent, especially if it could be permitted on the famous, scrutinized, Waikiki beaches.”
A Kyo-ya representative told The Independent over the phone that no one from the company was available to comment at this time.
In 2010, Kyo-ya, the owner of the Moana Surfrider hotel complex (the complex contains three buildings—the Surfrider Tower, the Banyan Wing, and the Diamond Head Tower (DHT)—on a combined zoning lot located on Kalakaua Avenue along the Waikiki shoreline), submitted a land use permit to redevelop the existing 8-story DHT with a 26-story, 282 foot hotel and residential tower. Due to its size, location and design, the project required several permits and approvals, including a variance to allow the project to encroach into the coastal height setback.
In its variance application to the DPP, Kyo-ya maintained that, although the project was “unable to comply with the strict requirements of [the coastal height setback],” the project satisfied the three requirements for issuance of a variance. Tanoue agreed, granting Kyo-ya its variance.
The Surfrider Foundation, Hawaii’s Thousand Friends, Ka Iwi Coalition, and KAHEA filed a petition to the Zoning Board of Appeals (ZBA) challenging the conclusion that Kyo-ya’s request met the requirements for issuance of a variance as set forth by the city charter.
The ZBA upheld Tanoue’s approval of the variance, which led to an appeal by Surfrider et al. that sent the case to the First Circuit Court where the ZBA decision was, again, upheld. The court’s decision was appealed and the case headed to the Hawaii Supreme Court. Citing precedent in a series of older cases, as well as the DPP’s own Zoning Variance Guidebook, the Supreme Court overturned the previous decisions and sided in favor of the appellants.
“[A]lthough the director found that the variance was necessary to ‘maintain economic viability,’” wrote Pollack in the Opinion of the Court, “there is no financial data in the record to support such a finding; rather, it appears [Director Tanoue] merely recited statements Kyo-ya made in its variance application.”
The opinion continues, “the mere fact that Kyo-ya cannot build the specific building design it desires is not sufficient to support a finding that Kyo-ya would be deprived of the reasonable use of its land or building.”
The Land Use Ordinance of the City and County of Honolulu (LUO) designates “certain areas in the community in need of restoration, preservation, redevelopment or rejuvenation” as special districts, according to the Revised Ordinances of the City and County of Honolulu (ROH) §21-9.20 (1990). For each special district, the LUO sets forth objectives, identifies prominent view corridors and historic properties, and outlines requirements and design controls to guide development to “protect [and] enhance the physical and visual aspects of [the district] for the benefit of the community as a whole” (ROH §21-9.20-1).
According to provisions of the LUO, the Honolulu City Council established the Waikiki Special Design District (later renamed the Waikiki Special District) in 1976 in response “to the rapid development of the 1960s and 1970s, and the changes produced by that development.” The council found that “[t]o the world, Waikiki is a recognized symbol of Hawaii, and the allure of Waikiki continues, serving as the anchor for the state’s tourist industry.” The council concluded that, while “Waikiki needs to maintain its place as one of the world’s premier resorts in an international market, the sense of place that makes Waikiki unique needs to be retained and enhanced.” Accordingly, the council developed specific requirements and design controls “to guide carefully Waikiki’s future and protect its unique Hawaiian identity.”
Among the provisions enacted to protect Waikiki’s identity is a limitation on development next to the shoreline. The council established a coastal height setback requirement because of the “need to step back tall buildings from the shoreline to maximize public safety and the sense of open space and public enjoyment associated with coastal resources.”
But the council did provide for a variance process when compliance with the LUO would result in “unnecessary hardship.” In order to establish unnecessary hardship, an applicant must demonstrate that the following three requirements, as prescribed in the City Charter, have all been met:
1) the applicant would be deprived of the reasonable use of such land or building if the provisions of the zoning code were strictly applicable;
2) the request of the applicant is due to unique circumstances and not the general conditions in the neighborhood, so that the reasonableness of the neighborhood zoning is not drawn into question; and
3) the request, if approved, will not alter the essential character of the neighborhood nor be contrary to the intent and purpose of the zoning ordinance.
If the LUO “were strictly followed,” Kyo-ya contended that it “would not even be able to rebuild the existing [DHT].”
Kyo-ya also argued that the State of Hawaii had entered into an agreement in 1965 with the owners of beachfront parcels in the area, including Kyo-ya’s parent company, under which the state committed to expand the beach and “[p]rotect and preserve all existing beach” in a designated area. Although the contemplated beach expansion was never completed, Kyo-ya asserted that had “the beach been constructed by the state, it is likely that the beach fronting the [DHT] site would be approximately 180 feet wider than it is today.” If the beach had been extended, Kyo-ya argued, “almost no portion of the [project] would encroach into the coastal height setback.”
Kyo-ya further argued that the parcel’s “unique size and shape” caused the impact of the coastal height setback to be “greater than on any other parcel along Waikiki Beach.”
With respect to the third requirement, Kyo-ya submitted that the variance “will not alter the essential character of the locality nor be contrary to the intent and purpose of the zoning code.” Kyo-ya characterized Waikiki as “a densely developed, urbanized area, filled with large hotels, condominiums, and mixed-use projects which push (and in many cases exceed) the limits of permitted heights, densities, and other zoning and building regulations.” Kyo-ya argued that many of the “existing hotels along Waikiki Beach already encroach into the coastal height setback” and that allowing the project to similarly encroach would not alter the essential character of Waikiki. Kyo-ya contended the project’s “mauka-makai orientation, increased public open space, improved beach access,” and that the addition of surfboard racks should “go a long way toward restoring the character of Waikiki.”
Director Tanoue held a public hearing on Kyo-ya’s variance application and subsequently granted partial approval of Kyo-ya’s variance application, agreeing with nearly every argument the developer made.
Not only did the Supreme Court reject each of the reasons the director made to grant the variance, the court opinion points out that Tanoue appears to have sidestepped the City Council’s intent for an applicant to meet the distinct three-part hardship test by defining and evaluating the
“reasonable use” of Kyo-ya’s property in terms of the more flexible Planned Development-Resort (PD-R) permit provisions.
“Specifically, the director used Kyo-ya’s inability to obtain the full benefit from the PD-R permit as a reason to find that Kyo-ya would be denied reasonable use of the site if the coastal height setback was applied,” wrote Pollack. “In other words, by obtaining the PD-R permit prior to seeking the variance, Kyo-ya was able to argue that it was deprived of the reasonable use of its land by pointing to the loss of the increased density and height that the PD-R permit allowed. Thus, the three requirements that must be satisfied to obtain a variance from the coastal height setback were subordinated to Kyo-ya achieving the benefits of the PD-R permit.”
As the Supreme Court opinion points out, the effect of coordinating the permits in this manner resulted in the ostensible inclusion of the coastal height setback as being among the provisions that can be modified under the PD-R permit.
“This is directly contrary to the intention of the City Council: the coastal height setback stands apart from the PD-R permit, and an applicant seeking a variance from the coastal height setback requirements must independently satisfy the unnecessary hardship test,” Pollack concluded. “Accordingly, the PD-R permit should not have been considered as a basis for determining reasonable use in order to satisfy the first requirement of the variance test, as it enables circumvention of the coastal height setback.”
The court also tossed out Kyo-ya’s argument that the variance should be granted on the basis of a hypothetically wider beach that could have been created if the state had followed through with its 1965 agreement with Kyo-ya’s parent company.
“The 1965 beach agreement was not incorporated into the LUO or referenced in the provisions of the subsequently enacted Waikiki Special District,” wrote Pollack. “While there have been beach replenishment projects in the years since the agreement, the beach width envisioned by the 1965 beach agreement was never realized. Therefore, the agreement had no effect on the certified shoreline by which the coastal height setback is measured.”
Kyo-ya’s and Tanoue’s conclusion that the project would not clash with the intent of the Waikiki Special District because the district is already comprised mainly of densely developed properties was struck down by the court as well, which simply referred to language in the district’s own Design Guidebook, in particular: “[d]esign in Waikiki should compose spaces and elements in a way that encourages experiencing the natural environment.”
“Appellate courts are generally reticent to reverse an agencyʻs decision except where they really screwed up,” said Isaki. “The Hawaii Supreme Courtʻs 76 page opinion was well considered in this regard.”
]]>In 1998, the state auditor submitted a meticulous analysis of the University of Hawaii's abysmal performance over the prior 20 years. In 2005, a follow-up analysis was done which was no less troubling. The most recent audit was last year, showing some improvement but continued failures. Taken together, these three independent reports document a continued breach of the UH's fundamental trust responsibility for over 45 years.
There is wide agreement regarding the importance of protecting Hawaii's unique cultural and environmental resources. Discussion and debate on the balance between preservation and development require an informed and objective analysis such as that provided by the state auditor.
From the start, the UH saw Mauna Kea as a vehicle to gain academic prestige and that has never changed. The effort to characterize this as science against culture — or worse, the past versus the future — completely misses the fundamental flaw.
The UH was never equipped to manage Mauna Kea. It measured success by the evanescent standards of academics: papers published, credit given and international accolades conferred by being connected to some degree to work performed by others because it came out of Mauna Kea.
The true economic value of observatory sites was never pursued and never realized. The protection of the environment has been secondary. Cultural and historical protections have been viewed as nuisances. The summit became a scientific industrial park of which the UH was a poor manager.
We now have the biggest of all the telescopes ready for construction. The Thirty Meter Telescope has reaped the bitter harvest of all that came before and Hawaii is very much in the world's attention because of this controversy. Our leaders seem paralyzed, while TMT opponents have demonstrated both conviction and tenacity in their protests. It seems that events are going to careen inevitably into destructive conflict, which will further polarize our communities and diminish Hawaii's credibility in many ways.
It is not too late to set things right. It seems that these unresolved issues from our past are the place to start. To ignore these transgressions is untenable.
The UH pursued international acclaim at the expense of its relationship with the community, which created it and supports it. DLNR allowed it. All of us who did not object long ago share in these failures.
For the good of our home, our leaders and their institutions must take the difficult but unavoidable step of acknowledging the failures with genuine contrition and implementing credible changes in the control and operations of Mauna Kea. We must definitively resolve the past issues that haunt the present discussion.
Progress will come when the UH is replaced by an independent entity that can properly balance the competing interests. Until then, I support the peaceful protesters impeding further construction on Mauna Kea.
We are Hawaii.
Hawaii is Mauna Kea.
Onipaa.
Abigail Kinoiki Kekaulike Kawananakoa is a philanthropist, Campbell Estate heiress and descendant of Queen Kapiolani.
]]>The $300 million Daniel K. Inouye Solar Telescope, in the works on Maui for over a decade, is under construction in the Science City area of the summit of Haleakala. When it is completed in 2019, the largest solar telescope in the world will give astronomers the best view of the sun they've ever had.
But not if Kilakila o Haleakala has its way. The small group of Native Hawaiians has been battling the project in the public-review process and the courts for years, although largely under the radar.
Now the case has reached the state's highest court, and the group is hoping for a ruling that will block construction.
With many similarities between the Haleakala and Mauna Kea cases, the court is now weighing broad legal issues that not only could affect the Inouye telescope, but the future of the $1.4 billion TMT project.
"We're watching the Maui case very closely," said Kealoha Pisciotta, president of Mauna Kea Anaina Hou and one of the individuals suing to halt the TMT project.
Both projects were shepherded by the University of Hawaii on land subleased from the state Board of Land and Natural Resources. Both projects are being funded mostly from institutions and entities based away from Hawaii.
While the Thirty Meter Telescope is being billed as the largest optical telescope in the world, the 4-meter Inouye project will be the world's most powerful ground-based solar telescope, enabling solar astronomers to see more clearly into the heart of sunspots, flares and other solar phenomena that influence Earth.
The massive TMT is planned to rise 18 stories and be the tallest structure on Hawaii island when built, while the Maui telescope is expected to reach 14 stories.
In both cases a small group of Native Hawaiians has contested these projects every step of the way, arguing that the mountaintop is sacred and that these enormous developments will desecrate and overwhelm a place of spectacular beauty and significant traditional cultural resource.
While the Kilakila case has advanced to the Hawaii Supreme Court, the Mauna Kea case is gearing up for a hearing before the Hawaii Intermediate Court of Appeals. Both projects won a green light to begin construction even as appeals were filed in court.
One of the key legal issues being argued in both cases is whether the Board of Land and Natural Resources failed to meet all eight criteria required before construction is allowed in the state's protected Conservation District, which the court has already observed as tolerating the least degree of development.
David Kimo Frankel, the Native Hawaiian Legal Corp. staff attorney representing Kilakila, said the group is not disputing the fact that astronomy facilities are listed as one of the legal uses of the conservation district. Rather, he said, this specific project — given its unprecedented size, industrial appearance and substantial impacts, among other things — is inconsistent with the purposes of conservation lands.
Frankel said the state Legislature's history of amendments to the Conservation District law shows increasingly restrictive requirements for development, and the BLNR should have analyzed whether this specific astronomy project is consistent with the purposes of the district.
During arguments at the Hawaii State Supreme Court on April 2 — the same day protesters were being arrested on Mauna Kea — many of the same issues that are integral to Mauna Kea were argued before the court, including whether developers can offer mitigating measures that do nothing to offset the physical impact of a project and whether the BLNR prejudged the issue.
A ruling could lead to greater restrictions over development in the Conservation District, an area that encompasses 2 million acres including the summits of Haleakala and Mauna Kea.
Ki‘ope Raymond, president of Kilakila o Haleakala and longtime University of Hawaii Maui College Hawaiian-studies professor, said it hurts when he goes to Maui's 10,000-foot mountaintop and sees the giant shell of the Inouye telescope. He said the structure is even more imposing than he thought it was going to be.
Kilakila, which formed after many Native Hawaiians on Maui expressed their disdain for the proposal, kept trying to find a compromise with the institutions driving the project, he said.
"But they didn't compromise on anything," he said, including refusing to budge on the size or even the color of the dome.
Attempts by the Honolulu Star-Advertiser to reach the leadership of the Inouye telescope project with telephone and email requests were unsuccessful last week.
Pisciotta, a veteran foe of Hawaii island astronomy projects, said there's a special connection between Haleakala and Mauna Kea because they are spiritually aligned. Both are above the clouds, in the heavenly realm and sacred high-altitude points that are open gateways to heaven, she said.
Pisciotta said she's feeling good, even optimistic, about what might come out of the Kilakila case because the Hawaii Supreme Court has a history of supporting environmental and cultural rights, such as the time when the court ruled in favor of public access in the PASH (Public Access Shoreline Hawaii) case in the 1990s.
Six months ago, like on Maui, only a small, hard-core group was fighting against the TMT, maneuvering through the lengthy public review and legal channels.
"If we weren't bringing these cases, the TMT would have been built already," she said.
Since then a handful of young activists blocked construction crews, set up camp and galvanized a mountain of support through social media.
"It's changing the face of activism," Pisciotta said. "It's the modern tool of activism."
Raymond said he is impressed with the enthusiasm of the young activists, and even Kilakila o Haleakala has seen a surge in interest.
"Many Native Hawaiians are focusing on the summits and asking, What is my responsibility to hold the mountain sacred?" he said.
]]>Foes of the Thirty Meter Telescope on Monday delivered to Gov. David Ige a petition with more than 53,000 signatures opposed to the $1.4 billion project on Mauna Kea.
Kealoha Pisciotta, leader of the Mauna Kea Hui, also called on the governor to pardon the 31 “protectors” who were arrested April 2 trying to prevent work vehicles from reaching the construction site at the summit of the 13,796-foot mountain.
In addition, Pisciotta asked Ige to rescind the appointment of state Attorney General Douglas Chin because he was the former managing partner of a law firm, Carlsmith Ball, which is representing the University of Hawaii and the TMT project in the lawsuits filed by the Mauna Kea Hui against the development.
]]>TMT's claim to a moral high ground in the name of science has been made loudly and consistently to an audience trained to think of "science" as an undeniable force of innovation and an institution that has produced nothing but good for human beings. Nuclear weapons aside, even if one were to concede the hallowed place of science in contemporary society, Mauna Kea reminds us that there are other knowledges and understandings developed, honed and cherished by human beings which native peoples globally have been striving to recover after the long wave of European ideas and beliefs inundated our societies and attempted to drown the observations and practices of thousands of years of experience.
At a moment in our history when we are more poised than ever to rediscover and resume the knowledge of our ancestors, it seems particularly cruel to destroy the resources that have survived the last two centuries of cultural upheaval. These natural pu‘u, viewplanes, and life forms, threatened and some already destroyed by astronomy development, are like our textbooks — poised to be burned just as we are approaching the library steps.
We use the word sacred to describe the mountain. Its name, Mauna a Wākea, describes the place that the mountain has in the imagination and experience of our people: first born of Wākea, the sky; magnificent in aspect; first to be sighted by ancestral visitors arriving from the southern islands. But the mountain is sacred to humans because of what it has meant to them over the millennia, a place where one treads carefully and reverently, because it is important for people to feel a reverence for something.
In the absence of that reverence, there is no meaning to our existence, and for Kānaka that meaningfulness is tied directly to our belief that we and the mountain share common ancestors. Even if not a single person had ascended that mountain in the last century to feel her quiet and yet powerful assurance, she would still have been waiting for us to remember.
The summit and the northern plateau of Mauna Kea are known as the wao akua, the realm of the gods. It is because of this reverence for this sacred mauna, this kapu aloha, that the Kū Kiaʻi Mauna, the protectors of Mauna Kea, continue to demonstrate that we have not forgotten who we are. People are streaming to Mauna Kea to protect her because in protecting her we are protecting another vestige, another ʻano of our collective selves. It is painful to have to explain and justify the sacred. It is a reminder that much of the world doesn't recognize the ways you identify yourself as valid.
The TMT supporters do not so much as engage with the reasons why we see the sacredness of this place, and merely insist that this is the best place on Earth for the best yet telescope devised. J.B. Zinker's book, "An Acre of Glass," details astronomy's insatiable desire for ever larger ground-based telescopes and clarifies that these giant building projects are not only bigger scientific instruments, they are also huge investments with serious money at stake.
And so we must address the question of whether we can share that sacredness with the telescope with a clear answer. No. We cannot because there is nothing careful or reverent about its development, construction or even its intent. The TMT itself is a symptom of a society that recognizes no limits. Why should 30 meters be sufficient when 3 or 12 were not? And if that gaze they have been afforded into the farthest reaches of this universe produces simply a hunger for more penetrating looks at the sky, at what point will the astronomy community possibly acknowledge the need for reverence articulated by Kanaka Maoli?
Stop the construction. Bring the machines off the mountain, let the leases to the university expire and the mountain heal.
]]>In the statement released Friday afternoon, Ige said: “My understanding is that TMT followed an almost 7-year planning and permitting process, which included public hearings and community input. Following this process, project permits were issued. The TMT team is legally entitled to use its discretion to proceed with construction.”
He continued, “I understand that not everyone will agree with this." Ige noted that he recognizes and respects the right to appeal the matter through the court system.
Any further announcement about the construction schedule will come from TMT.
On April 7, Ige announced a one-week “timeout” in construction to “evaluate the situation from multiple perspectives.” On April 11, he announced a second timeout, which wraps up on Monday.
“We have used this time to listen and learn about Maunakea from various stakeholders. I learned about other issues that need our attention to create and implement a better plan for the stewardship of Maunakea," Ige said in the statement.
According to the statement, this plan may include:
-decommissioning and removing older telescopes and facilities to restore the summit;
-reducing the level of activity on the summit; and
-integrating culture and science.
]]>Native Hawaiian and environmental groups oppose the building of the $1.4 billion, 18-story-tall TMT that would be the biggest telescope on Mauna Kea and nine times more powerful.
“I thank TMT for its willingness to be respectful and sensitive to all of Hawaii — its special people, its sense of place and its unique host culture,” Ige said in a statement.
In related news, the Office of Hawaiin Affairs Board of Trustees met Friday and discussed the burgeoning crisis. In a press release Saturday, the quasi-state agency, which initially approved of the TMT project, said it has been in discussions with “state decision makers.”
“In these talks, OHA leaders have emphasized the need for all parties to address the unresolved legal matters while the TMT construction moratorium remains in place,” the agency said in a statement.
Two days ago, dozens of protesters turned out at an OHA board meeting and asked trustees to lend them support. Hundreds of protesters also rallied at the University of Hawaii at Manoa on Friday.
“The Board plans to gain greater clarity on the pending legal cases relating to the TMT project,” the agency said Saturday.
Read Civil Beat’s latest reporting on the TMT protests, Telescope Protesters Prepare for Another Police Showdown.
]]>Governor David Ige announced at a press conference Tuesday that construction of the Thirty Meter Telescope atop Mauna Kea will ‘pause' for a week.
He's hoping the next seven days will ease tensions and increase dialogue between stakeholders over the construction of the thirty meter telescope.
"The president of the University (Hawaii) and the Office of Hawaiian Affairs have agreed to a timeout on the project and there will be no construction activities this week," Gov. Ige said.
Opponents aren't sold.
"I believe it was just to avoid the national black eye because we have the Merrie Monarch going on right now," said De Mont Conner, manager of Ho'omana Pono, an activist organization.
He was referencing the world renowned hula festival taking place in Hilo this week. "They're taking Merrie Monarch week off because the world watches Merrie Monarch.
The world will know the truth, so they figure what you don't see you don't know," added his wife Momi.
The Governor did not mention Merrie Monarch in his press conference, and offered little on the specifics of the proposed dialogue set to take place between parties.
However, he did say in so many words what his position on the telescope is. Gov. Ige said that all sides are actively engaged in "meaningful discussions" and "conversations."
"There have been many decisions made previously on Mauna Kea and about Mauna Kea and I believe those decisions have to be honored," Gov. Ige said.
Activists were more direct in their views. "How can we be trespassing on our own land? We are kanaka ma'oli, we are the host culture.
The governor and the powers that be need to start listening to the power of the people," said Conner. "What the people on the ground is calling for is a moratorium. Stop the building."
]]>Click here to watch Paula Akana's report.
MAUNA KEA, Hawaii – As the Mauna Kea Access Road blockade enters a seventh day, those opposed to the Thirty Meter Telescope project are still taking the time to explain their reasons for the action to authorities, visitors, and media.
Big Island Video News has gotten many questions from viewers and visitors concerning the purpose of the blockade. This interview (above) sheds some light on the arguments being made by the protectors, as they call themselves. For the most part, the arguments are unchanged from the concerns raised during the lengthy permitting process. On the same day these interviews were conducted (Tuesday) the University of Hawaii released an update and background statement, refuting some of the positions being taken by the protectors.
The primary concerns were explained by Kahookahi Kanuha and Lanakila Mangauil on Tuesday. Both stressed that they are not “anti-science” or even “anti-TMT”, but rather opposed to the observatory being located on the summit of Mauna Kea. They say the rules that govern the permitting process in a conservation district – the “8 criteria” – were not followed by the Board of Land and Natural Resources when they rendered their decision to allow TMT to go forward.
The University says the claim that TMT did not meet the eight criteria for a conservation district use permit is inaccurate. “The Third Circuit Court ruled that TMT did meet the criteria by being consistent with state laws governing the districts, not causing substantial adverse impact to existing natural resources, being compatible with the surrounding area, preserving the existing physical and environmental aspects, not subdividing or increasing the intensity of the land use and not being materially detrimental to the public health, safety and welfare. State regulations specifically identify astronomy as a permitted use in the Maunakea Science Reserve.”
Kanuha, Mangauil and others disagree with UH. They say a conservation district is not supposed to look like a “city” of telescopes, as it does now. They say one more observatory is too much; especially one as big as TMT.
UH says that over last seven years, “TMT has met all legal requirements in obtaining the necessary permits to build a next generation telescope from the Hawaiʻi Department of Land and Natural Resources and the County of Hawaiʻi, including a sublease from the university.” TMT was granted a motion to proceed by the state Department of Land and Natural Resources on March 6.
However, the lawsuits are not entirely settled. The case is in the Intermediate Court of Appeals and the 3rd Circuit Court now, and the “legal questions before the court are whether the TMT has meet all of the legal or regulatory requirements to allow it to be build on Mauna Kea or not,” wrote petitioner Kealoha Pisciotta of the group Mauna Kea Anaina Hou recently. Opponents say the project should not be moving forward until the final court appeal is decided.
Opponents of TMT also raise concern over the water shed. “If you live on Hawaii you need to be familiar with where your water comes from,” said Mangauil. “This mountain is one of the main sources that feed our aquifer. So any contaminant on the mountain will go directly into our aquifers.” It is one of the reasons that the summit realm has been kapu in ancient Hawaiian traditions.
But UH refutes the water claim as another inaccuracy. “Comprehensive research by expert hydrologists confirms that TMT and the existing 13 telescopes pose no such danger,” UH wrote Tuesday. “Furthermore, TMT is designed to be a zero waste discharge facility with all waste securely transported off the summit. There is also very little precipitation above 8,000 feet and the observatories are located well above that at the top of Maunakea at 14,000 feet.”
Native Hawaiians have been divided over the detrimental effects the project may or may not have on culture and religion. There is agreement that the summit is sacred. TMT supporters – including Native Hawaiians – have drawn a connection between the ancient Hawaiians understanding of the heavens in wayfinding and early astronomy as a justification. “A sacred science on a sacred summit,” they said during the permitting process. But Mangauil and Kanuha say that idea is a falsehood propagated by developers in the interest of building their observatory.
“We did not need to destroy mountains” to practice astronomy, Kanuha said.
Managuil agreed. “We were protectors of the natural cycles of the world,” he said. “If you made an offer to put this on the top of our most sacred mountain, no… I don’t think (our kupuna) would be for that. They’s say great science, great technology. Wrong place. And that’s what we’re saying.”
There is one more glaring issue brought up by TMT opponents; the political elephant in the room. The Hawaiian Kingdom still exists, they say.
“As many people are finding out, Hawai is under illegal and prolonged occupation by the United States of America,” Kanuha said, “and therefore the state of Hawaii is illegal. So therefore the contracts between the contractors and the state are illegal. Their claim of entitlement to the mountain is based on illegality.”
“These are not only cultural lands,” Kanuha continued, “but these are crown lands. These are lands that were seized by the United States of America after the overthrow. They call them ceded lands. I call them seized lands. These are supposed to be held in trust for the Hawaiian people. And I believe the Hawaiian people have made it clear that they are against this.”
The issue relating to the Hawaiian Kingdom has not been addressed by the university or TMT in recent media releases.
]]>As vast as its expanses of ice and lava are, Mauna Kea has not proved sizable enough to accommodate the desires of all three groups. The dormant volcano has become a battleground between astronomers, who have placed 13 telescopes at its summit and now wish to build one more, and Hawaiian cultural and environmental activists who believe the stargazing science has already had too much impact on the 4,205-meter-high mountain.
Two lawsuits are in motion over the California Institute of Technology and the University of California’s proposal to build the Thirty Meter Telescope (TMT); in October activists shut down the project’s groundbreaking in a protest that made headlines worldwide. So far, courts have ruled in favor of the telescope and construction has recently begun. Activists have appealed and say they will continue to protest.
For astronomers, the proposed new telescope represents tremendous promise: With a mirror nearly three times larger than any other on Earth, it could detect signs of life in other solar systems and provide clues to the origins of the universe. But for some Hawaiians, it represents the ongoing desecration of a sacred place. Ancient Hawaiians considered the volcano the umbilical cord connecting the land to the heavens and used the mountain as a site of burials, altars and worship; thousands of shrines and other cultural artifacts have been recorded on the Mauna Kea and many are still tended by Hawaiian families. Fishermen still make offerings at the volcano for a good catch and hunters still fan across its forested skirt in search of prey.
Kealoha Pisciotta, one of a half dozen plaintiffs suing to stop the project, finds herself in the unusual position of having friends on both sides of the debate. She was a telescope systems specialist technician on the James Clark Maxwell radio telescope for 12 years. Meanwhile, she maintained a family shrine near the summit and led a cultural heritage group. “I descend from Polynesian navigators, people who carry the star knowledge, so in the beginning I didn’t see the conflict between telescopes and the mountain,” Pisciotta says. “I only began to see it later when there were problems—people looting antiquities from the mountain, building these bigger telescopes that really affected the landscape, and destroying important landmark features.”
The amount of development at the summit is among the activists’ complaints. As the summit has been carved up by roads and studded with buildings, the awesome beauty of the once-stark landscape has diminished, Pisciotta says. Some of the telescopes can now be seen by 72 percent of the island’s population, according to an environmental impact document. Environmentalists have their own bone to pick with the project, arguing the development has already harmed the habitat of the wekiu bug and other endemic flora and fauna, and limited recreational uses.
Project managers say the new telescope has been carefully designed to avoid these impacts. Although the TMT will loom 18 stories high, making it the largest building on the island, it will be visible only from 15 percent of the island and will touch only 0.08 hectare of the bug’s habitat.
If activists were to succeed in stopping TMT, it wouldn't be the first time: In 2002 a federal court blocked a NASA plan to build a half dozen 1.8-meter telescopes on the mountain because it failed to do a comprehensive environmental assessment; NASA eventually abandoned the project.
Two other U.S. mountaintops have become combat zones between astronomers and activists. In the late 1980s astronomers at the Mount Graham National Observatory in Arizona faced opposition to a new telescope from squirrel-protecting environmentalists and from the San Carlos Apaches, who perform religious ceremonies on the mountain. Astronomers eventually won, but the delays forced them to downsize their project. In the 2000s the Kitt Peak Observatory, built on the tribal reservation of the Tohono O’odham Nation, became the site of another clash. In 2005 the tribe successfully put a stop to a new $13-million telescope complex at the observatory.
When these conflicts arose, says Leandra Swanner, a science sociologist and historian at Arizona State University in Tempe, astronomers “felt blindsided.” They were accustomed to considering themselves the underdogs, continually embattled for funding and support. The astronomy community initially dismissed indigenous claims as spurious, antiquated and antiscience, a perspective that is still prevalent. In a column in The New York Times last October science writer George Johnson likened Hawaiian’s opposition to the telescope to the Catholic Church’s oppression of Galileo, and suggested that the indigenous protesters were pawns of environmentalists who “have learned that a few traditionally dressed natives calling for the return of sacred lands can draw more attention than arguments over endangered species and fragile ecosystems.”
Plantiff Pisciotta bristled at these implications, saying native groups have every right to make claims, and can do so without being antiscience. She noted that plaintiffs have invested tens of thousands of their own dollars into the campaign because it is of deep personal importance to them.
TMT leaders have been more careful than their predecessors and have taken the opposition seriously, by trying to gain public support for their project. TMT spokesperson Sandra Dawson says her team had more than 300 “talk–story sessions”—the Hawaiian pidgin term for dialogue—with community members over the course of several years, including half a dozen well-attended public hearings, and that by their estimates well over half the island’s population supports the project. They collected thousands of pages of testimony and conducted an extensive environmental and cultural impact review that have so far been met with approval from Hawaii’s land board and its courts.
Banana farmer and Hawaii Island Economic Development Board member Richard Ha, who is part Hawaiian, says he was initially ambivalent about the new telescope but now supports it. That support was won when TMT leadership promised $1 million a year to the island’s public schools. But more importantly, he says, project leaders have treated islanders with respect. “The first thing they did right was talk to the community,” he says. “That was a huge deal, because prior to that they would make decisions at a high level and people would just have to deal with it.”
Nevertheless, the project still faces considerable opposition. In October the number of people who showed up to protest at the telescope’s groundbreaking ceremony—protesters estimate around 500—took telescope supporters by surprise, and suggests there may be resilience to the opposition. That momentum may derive in part from a renewed appreciation of Hawaiian heritage as part of a “new Hawaiian renaissance,” as protester Joshua Lanakila Mangauil put it. He says efforts to protect Mauna Kea are one vein of that renaissance. “Hawaiians are learning the laws that were used against us,” he says. “We’re learning the legal game. We’re using it to reclaim our people and our islands and our culture.”
After about 50 protesters lay across the road and later stormed the ceremony the groundbreaking was aborted. Its master of ceremonies concluded, “We do hope we’ll be able to find a common ground and proceed with this in the future.”
But TMT’s Dawson says they later decided not to reschedule the event. “We will have no more ceremonial events,” she says. “We will just move forward.”
]]>1) Cumulative Impacts to the Cultural and Natural Resources are Adverse, Significant and Substantial
The National Aeronautics and Space Administration (NASA) conducted the first and only federal Environmental Impact Statement (FEIS) in the history of astronomy development atop Mauna Kea. The federal court found that the original NASA Environmental Assessment (EA) was inadequate and the court compelled them to start over. NASA then opted to compete the full and more rigorous EIS. The NASA FEIS findings concluded: “That the cumulative impact of thirty years of astronomy development atop Mauna Kea has resulted in ‘substantial, adverse and significant’ impacts to the cultural and natural resources of Mauna Kea”.
The NASA EIS would not have been done if NASA had not been sued by the Office Of Hawaiian Affairs on behalf of the Mauna Kea Hui (a group of Native Hawaiians, recreational users, and members of the public who have doggedly fought for the protection of Mauna Kea, often at their own physical and financial expense).
2) Such Environmental Impacts are Unacceptable under the Law
We stand on the findings of the NASA FEIS and therefore cannot support the University/TMT’s request for a new 65 year lease. The NASA environmental findings mean that neither TMT nor any other development can be approved without being in violation of the Mauna Kea Conservation District (MKCD) rules and regulations. Namely HAR §13-5-30(c)(4) “The proposed land use will not cause substantial adverse impact to existing natural resources within the surrounding area, community or region”.
3) The State itself has already found that both DLNR and UH have failed to protect the natural and cultural resources of Mauna Kea. Please see the appended document put together by the Sierra Club that highlights the key findings of the 1998 state Audit of the Management of Mauna Kea and the Mauna Kea Science Reserve. Such findings include “Both the university and the (DLNR) failed to develop and implement adequate controls to balance the environmental concerns with astronomy development.” (p. 34, 15) UH claims that changes have been made to correct the many violations and failings enumerated in the report, but we maintain that nothing substantive has changed regarding their management of Mauna Kea.
During your tenure as governor, we ask you to take specific action to restore the balance between the appropriate use and the conservation of Mauna Kea that the University of Hawai’i’s (UH) mismanagement and overexploitation has undone. The following is a nonexclusive list of such actions:
(1) No additional construction on Mauna Kea.
a. Advise BLNR to permit no further construction, permitting, or leasing of Mauna Kea lands;
b. Advise the UH Board of Regents to require the TMT Observatory Corporation to halt construction;
These actions are particularly appropriate pending the full judicial resolution of the pending appeal of the BLNR’s conservation district use permit (CDUP) for the construction of the Thirty-Meter Telescope (TMT) and the ongoing environmental review of the State’s general lease agreement (S-4191) with UH for the use of Mauna Kea;
(2) Refuse to accept UH’s proposal for a new general lease and the related Environmental Impact Statement Preparation Notice (now out for public comment) pending the full judicial resolution of the appeal of BLNR’s conservation district use permit for the construction of the Thirty-Meter Telescope;
(3) Refuse to accept UH’s future final environmental impact statement (EIS) for a new master lease under gubernatorial authorities pursuant to Hawaiʻi Administrative Rule (HAR) §§ 11-200-4(a)(1) and -23(a); unless UH fully demonstrates – without relying on putative “economic benefits” as mitigation - that no cumulative, substantial, adverse impacts to Mauna Kea cultural and natural resources from existing or future land uses will occur; and
(4) Create a community-based authority to manage Mauna Kea. This was the primary recommendation in “Mauna Kea – The Temple,” submitted by Mauna Kea Anaina Hou and the Royal Order of Kamehameha I to the Board of Land and Natural Resources (BLNR). This hui of land managers would be composed of Native Hawaiian cultural practitioners, environmental conservationists, other rights-holders, government agencies (the Department of Land and Natural Resources’ (DLNR) Office of Conservation and Coastal Lands (OCCL) and the State Historic Preservation Division (SHPD), Hawai’i county representatives, and other community stakeholders. We’ve enclosed a copy of the Temple report with this memo. To be called a community-based management authority, the members must be vetted and chosen by the community, and it must have decision making authority. The current Office of Mauna Kea Management board members are appointed by the UH Hilo Chancellor and the current cultural advisory board, Kahu Kū Mauna, lacks decision making power.
With UH seeking a new master lease for the use of Mauna Kea and the impending construction of the Thirty-Meter Telescope, we urge you to take swift action. Please contact us at your earliest convenience to discuss the above actions and the future of our sacred mauna.
]]>Demonstrations are planned for the Hawaiʻi State Capitol and in New York City. Rumors abound that protestors plan to show up—wearing red—at public access areas of Mauna Kea itself on Tuesday morning as well.
These rumors were not lost on the University of Hawaiʻi Office of Mauna Kea Management (OMKM), which sent out an email to Mauna Kea tour operators informing them that, “OMKM has been hearing there will be a gathering of protestors and many planning to engage in some form of civil disobedience. We do not know what is being planned, but we can anticipate road blockages, including possible vehicle blockages and road sit-ins. We anticipate picketers and hecklers.”
The email, authored by OMKM Director Stephanie Nagata, goes on to say that, “Due to the potential magnitude of the protests and presence of foreign and local dignitaries, police are highly concerned about security and crowd control.” The Hawaiʻi County Police Department recommended closing the road to all but official State, University and Observatory vehicles.
Nagata’s email was forwarded to KAHEA, The Hawaiian-Environmental Alliance, which is a plaintiff in the lawsuit against the TMT project, along with the Mauna Kea Anaina Hou, Deborah J. Ward, the Flores-Case ‘Ohana, Clarence Kukauakahi Ching and Paul K. Neves. KAHEA is concerned that closing access to public areas of Mauna Kea in order to thwart a potential demonstration is a violation of First Amendment Rights to peaceably assemble, to express free speech and to express freedom of religion.
KAHEA called OMKM to verify that the road would indeed be closed. Scotty Paiva, OMKM’s Chief Ranger, was in the Hilo office. Paiva said that OMKM reconsidered the police suggestion and there is, currently, no plan to shut down the road. However, he also said that meetings with the Hawaiʻi County Police, OMKM and the State Division of Conservation and Resource Enforcement are ongoing.
Worried that OMKM might change its mind, KAHEA asked if Paiva could inform them of any change in that decision in the days leading up to Tuesday’s ground breaking ceremony. To which Paiva said no, because he only answers to Nagata. Nagata was not in the office at the time, according to Paiva.
The Independent sent an email to the American Civil Liberties Union (ACLU) of Hawaiʻi asking if they would consider the closing of the road to be a First Amendment violation. The ACLU of Hawaiʻi recently won a First Amendment case involving a Hawaiʻi island houseless man holding a sign soliciting help. A spokesperson for ACLU Hawaiʻi said that their legal team is currently reviewing the available information.
Nelson Ho, of the Sierra Club, and Clarence “Ku” Ching are planning on sending a letter to OMKM urging them not to close the road, as restricting access to public areas of Mauna Kea to prevent a demonstration would be a violation of First Amendment rights.
Hawaii Independent Publisher Ikaika Hussey sits on the board for KAHEA.
]]>(ABOVE VIDEO) On Wednesday night at the King Kamehameha Kona Beach Hotel, Kalani Flores and Pua Case were given 10 minutes to speak during the public testimony portion of the Office of Hawaiian Affairs board meeting. The two Waimea residents talked about Pohakuloa Training Area (we’ll have that story later), and their ongoing struggle against the Thirty Meter Telescope.
Video by David Corrigan
News Brief
Sources
Here is the film that was shown during the Flores / Case testimony. Pua said it was inspired by a letter to the editor that she wrote to the local newspaper.
Sacred Mountain - Mauna Kea, Hawaii from Living Ocean Productions on Vimeo.
]]>Kealoha Pisciotta said she and three other appellants, Clarence Ching, Paul Neves and E. Kalani Flores, made the deadline Monday to appeal the sublease and the denial of the contested case hearing requests.
The appellants say the $1.3 billion project on Mauna Kea will negatively impact Native Hawaiian cultural practices.
TMT spokeswoman Sandra Dawson said a ground breaking and blessing is scheduled Oct. 7. She doesn’t expect the appeal to affect that plan or construction. Major construction is expected to begin in spring 2015.
Pisciotta said the appellants are filing separately in 3rd Circuit Court in Hilo. They are representing themselves.
The appellants previously participated in a contested case hearing in 2011 about the project’s conservation use permit and the subsequent appeal, also heard in 3rd Circuit Court.
A judge upheld the decision to grant a conservation use permit in May. That decision is being appealed to the state Intermediate Court of Appeals.
The state Board of Land and Natural Resources denied the new contested case hearing requests in part because it found no statute or rule that requires one for a sublease.
While similar issues were raised during the initial contested case hearing and appeal, Pisciotta said another hearings process should be held to help the state make an informed decision.
“The agency process is an opportunity to inform the decision makers on how our rights and resources will be impacted,” she said.
Email Tom Callis at tcallis@hawaiitribune-herald.com.
]]>