Posted by: Patricia Salkin | November 7, 2018

HI Supreme Court Approves Thirty Meter Telescope Project Permit

This post was authored by Amy Lavine, Esq.

In October 2018, the Hawaii Supreme Court affirmed development approvals for the Thirty Meter Telescope on land located near the summit of Mauna Kea. Despite opposition from Native Hawaiian cultural practitioners, the court found that the plans for the astronomy facility were consistent with the public trust doctrine as well as the state’s constitutional protections for Native Hawaiian traditional rights. The court also dismissed claims alleging religious freedom violations and found that the telescope met the land use criteria required for the issuance of a conservation district use permit.

Disqualification issues

Preliminarily, the court rejected claims that several of the officials involved in the approval process had disqualifying conflicts or impermissible biases. One of the hearing officers officers who was appointed by the Board of Land and Natural Resources had a family membership at the ‘Imiloa Astronomy Center, which as part of the University of Hawaii would be benefited by the telescope, but the record showed that she was unaware that she had any connection to the telescope facility and the membership was “akin to a museum membership… not a membership in an advocacy group….” Project opponents claimed that another member of the Board of Land and Natural Resources was impartial based on a 1998 interview in which he made favorable statements about the Mauna Kea telescope, but as the court noted, he also made comments that were critical of the manner in which previous telescope projects had already “irrevocably changed” the culturally significant Mauna Kea landscape. The interview, accordingly, did not show that he would approve all future applications. The court similarly found no basis for the disqualification of a second board member who had voted to approve the original application for the Thirty Meter Telescope, remarking that “there is no legal authority requiring a Board member to be disqualified because he had approved a decision that is later vacated and remanded. If such authority existed, no vacated decision could ever be remanded to the same board or lower court judge.” 

Native Hawaiian Rights 

The Hawaii constitution expressly provides for the protection of Native Hawaiian traditional and customary rights. In the development context, this requires administrative agencies to make specific findings regarding: “(1) the identity and scope of valued cultural, historical, or natural resources in the relevant area, including the extent to which traditional and customary Native Hawaiian rights are exercised in the area; (2) the extent to which those resources… will be affected or impaired by the proposed action; and (3) the feasible action, if any, to be taken by the agency to reasonably protect Native Hawaiian rights if they are found to exist.” In approving the telescope permit, the court concluded that the Board of Land and Natural Resources complied with each of these steps. First, it made numerous findings related to the cultural, historical, and natural resources in the area, including the extent to which the land was used by traditional Native Hawaiian practitioners. As the court noted, however, after extensive surveying, the board found no archaeological or historical evidence that the development site contained Native Hawaiian cultural resources. And although several ahu (stone platforms/alters) were located in the vicinity, the board correctly determined that two ahu that were built on the site in 2015 to protest the development did not constitute protected cultural resources. In the next step of its analysis, the court found that the board reasonably determined that the telescope would not adversely impact protected cultural resources, as the project would not affect the ahu, and even if the summit were to be considered as part of relevant area, the telescope would not be visible from nearby sacred areas on Mauna Kea. Cultural and spiritual practices have coexisted with other astronomy facilities on Mauna Kea since 2000, moreover, and the board found that  these activities would not be prevented by the Thirty Meter Telescope. Finally, because the board determined that Native Hawaiian rights were not exercised in the relevant area, the third prong of the constitutional analysis regarding feasible mitigations did not need to be addressed. The board still considered various measures to avoid impacts on Native Hawaiian resources, however, and it imposed a number of special conditions on the telescope permit as a result.

Free exercise rights 

The project opponents next argued that the Board of Land and Natural Resources should have addressed whether the telescope would have a substantial burden on their rights under the Free Exercise Clause of the First Amendment. The court found otherwise, however, as the board’s decision fully recounted the testimony and other evidence regarding religious impacts. The court also dismissed their RLUIPA challenge because RLUIPA “applies only to government land-use regulations of private land — such as zoning laws — not to the government’s management of its own land.” One of the appellants, the Temple of Lono also challenged  statements made by the University of Hawaii made in a pre-hearing memorandum which claimed that the Temple wanted “a religious servitude over all of Mauna Kea, for the purpose of advancing its own religious agenda.” The Temple claimed that this language as an ad hominem attack, and the court acknowledged that the “tenor of the language in its memorandum was unnecessary.” The court nevertheless agreed with the university that its position was a response to the Temple’s religious claims which took “an absolutist position” and if adopted would have “run afoul of the establishment clause of both the federals and state constitutions.” Accordingly, neither the Hearing Officer nor the Board of Land and Natural Resources were required to disqualify the university as the permit applicant.

Existence of the Kingdom of Hawai’i

Another argument raised by the opponents was that the summit of Mauna Kea was part of lands still held by the Hawaiian Kingdom and that the hearing officer therefore wrongfully denied expert testimony from a professor who would explain that the State of Hawai’i does not exist as a matter of federal constitutional law. As the court noted, however, the United States Supreme Court has previously indicated that the process by which Hawai’i was incorporated into the United States was lawful and binding, and in any event, as the Hawaii Supreme Court previously recognized,”‘[w]hatever may be said regarding the lawfulness’ of its origins, ‘the State of Hawai’i . . . is now a lawful government.’…” 

Public Trust Doctrine

The court next addressed the application of the public trust doctrine under the Hawaii Constitution and held “that conservation district lands owned by the State, such as the lands in the summit area of Mauna Kea, are public resources held in trust for the benefit of the people pursuant to Article XI, Section 1. The plain language of Article XI, Section 1 further requires a balancing between the requirements of conservation and protection of public natural resources, on the one hand, and the development and utilization of these resources on the other in a manner consistent with their conservation.” The court first found that the project did not constitute an irrevocable transfer of public land to a private party based on the decommissioning plan, which required the site to be restored at the end of its anticipated 50 year useful life or at the end of its lease. The Board of Land and Natural Resources also imposed various requirements on the permit intended to protect the land in the area and to reduce the project’s negative impacts, and as the court noted, “in general, astronomy and Native Hawaiian uses on Mauna Kea have co-existed for many years and the TMT Project will not curtail or restrict Native Hawaiian uses. In addition, the TMT is an advanced world-class telescope designed to investigate and answer some of the most fundamental questions regarding our universe, including the formation of stars and galaxies after the Big Bang and how the universe evolved to its present form.” Additionally, the project also included a substantial community benefits package, with amenities such as grants, scholarships, and a local workforce training program for science, engineering, and technical positions. Based on this evidence, the court determined that the telescope project was consistent with conservation and in furtherance of the state’s self-sufficiency, as required under Article XI, Section 1 public trust principles.

Land Use Criteria and procedural due process

The permitted uses of the project site included “astronomy facilities,” but prior to granting a permit, the Board of Land and Natural Resources was required to consider eight statutory criteria, and the project opponents challenged the board’s findings with respect to three of those criteria. First, the opponents argued that the project would impermissibly “cause substantial adverse impact to existing natural resources within the surrounding area, community, or region.” The board determined that the cumulative impacts of astronomy facilities on the summit of Mauna Kea had already resulted in significant adverse effects, but the the Thirty Meter Telescope would not by itself create substantial adverse impacts to existing natural resources. In reaching this decision, the court found that the board appropriately considered the project’s various mitigation measures as well as its compliance with all applicable rules and regulations in the master plan and sub-plans. Second, the project opponents challenged the board’s conclusion that the telescope would be “compatible with the locality and surrounding areas” because the board had analyzed this requirement in the context of the 525-acre Astronomy Precinct of the Mauna Kea Science Reserve. The court explained with respect to this requirement that the statute did not include “any clear criteria as to how to determine what should constitute the appropriate “locality and surrounding areas.”” The court also recognized, however, that total deference to the board could allow it to circumvent the statutory land use criteria through strategic delineation, “and there accordingly must be a sound and rational basis for defining the relevant locale.” Applying this standard of review, the court upheld found that the board’s decision because although the 525 acre Astronomy Precinct was large, the master plan actually confined astronomy development to a much smaller 150 acre area, and the board had also determined that the project would be in proximity to the eleven other previously developed astronomy facilities. The third criteria raised by the project opponents required that “The existing physical and environmental aspects of the land, such as natural beauty and open space characteristics, will be preserved or improved upon….” The court agreed with the board’s determination that this criteria was satisfied, noting the board’s reliance on the project’s various conditions and mitigations, as well as the University’s formal commitment that this would be the last astronomy facility to be developed on Mauna Kea.

The project opponents also claimed that their procedural due process rights were violated by the hearing officer. Specifically, they argued that the burden of proof with regard to the state’s land use criteria was on the University of Hawaii, and that they should not have been required to present their case simultaneously and before they had an opportunity to see the university’s evidence. The court agreed with them that the hearing officer had abused its discretion to determine hearing procedures. Nevertheless, however, the opponents had been permitted to add new evidence throughout the evidentiary proceeding, and they failed to allege any actual prejudice due to the initial simultaneous submission requirement. Accordingly, the court determined that they were provided their due process right “to be heard at a meaningful time and in a meaningful manner.”

In re Contested Case Hearing re Conservation Dist. Use Application (CDUA) Ha-3568 for the Thirty Meter Telescope at the Mauna Kea Sci. Reserve, 2018 WL 6319046 (10/30/18).

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