Not on our land

On the same day 31 protesters were arrested trying to stop construction of the giant Thirty Meter Telescope atop Mauna Kea, lawyers appeared at the Hawaii Supreme Court attempting to block another major mountaintop astronomy project.

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.