SOURCE: BIGISLANDVIDEONEWS.COM
Associate Justice Michael Wilson dissented from the majority. A Dissenting Opinion will follow.
The 73-page opinion was issued on Tuesday morning. We have included a preliminary analysis of the majority opinion below.
UPDATE: Speaking over the phone, Kealoha Pisciotta of Mauna Kea Anaina Hou called the Hawaiʻi Supreme Court decision “disheartening”, yet at the same time “motivating”. Pending a more substantial written response, Pisciotta shared this photo from 2015 showing Liko Martin hand delivering 66,000-plus signatures asking Governor David Ige to “stop the desecration on Mauna Kea.”
photo by Laulani Teale via Kealoha Pisciotta
[…] On June 21, the Hawaiʻi Supreme Court heard consolidated oral arguments for three separate appeals from the BLNR decision, which was made in September 2017 following a lengthy contested case hearing. It was the second contested case hearing on the permit. The first hearing also resulted in the issuance of a permit, but it was vacated after the Hawaiʻi Supreme Court ruled that the state did not follow proper procedure.
This time around, Mauna Kea Anaina Hou alleged that the BLNR erred by (1) denying their motion to disqualify hearing officer Riki May Amano, as well as the BLNR’s and the hearing officer’s counsel. Mauna Kea Anaina Hou also alleged the state erred when it (2) overruled their objections to certain BLNR board members presiding in the case, (3) admittedTMT International Observatory, LLC and Perpetuating Unique Educational Opportunities, Inc. (PUEO) as intervenors; (4) denied their motion to strike the CDUP application, (5) concluded that it fulfilled the requirements of Ka Paʻakai O Ka ʻAina v. Land Use Comm’n, 94 Hawai i 31, 7 P.3d 1068 (2000), and improperly placed the burden of proof upon the appellants to establish native Hawaiian traditional and customary practices; and (6) concluded that the TMT project “met the criteria of Hawai i Administrative Rules §§ 13-5-30(c), and did not violate Article XI, Section 1 of the Hawai s24 i Constitution and the public trust doctrine.”
The second and third appeals were brought by attorney Gary Zamber on behalf of the Temple of Lono and seven individual intervenor-appellants.
THE ISSUES
1. Whether the BLNR erred by refusing to disqualify Amano as the Hearing Officer based on her family membership in the ʻImiloa Astronomy Center
From the court majority opinion:
The BLNR applied the correct test for impropriety: whether a reasonable person knowing all the facts would doubt the impartiality of Amano, or whether the circumstances would cause a reasonable person to question Amano’s impartiality. We agree that the circumstances of this case did not rebut the presumption that Amano would be capable of impartially performing her duties. Amano’s connection to ʻImiloa was too attenuated, as her connection was not shown to be anything other than a membership, no different than a membership of a member of the general public. The membership did not represent an unusual commitment to ʻImiloa, different from what any other member might have. Membership alone does not lead to a conclusion that a member supports a mission to build the TMT, even assuming that this is ʻImiloa’s mission. No disqualifying interest was shown and the circumstances did not fairly give rise to an appearance of impropriety and reasonably cast suspicion on her impartiality. For the reasons given by the BLNR, the bases for disqualification asserted in the renewed motion for reconsideration are also without merit. Therefore, there was no error in the denial of the requests to disqualify the Hearing Officer.
Whether the BLNR erred by refusing to disqualify Deputy Attorneys General who had advised the BLNR in Mauna Kea I from continuing to advise the Hearing Officer and the BLNR in the contested case hearing after remand.
From the court majority opinion:
The [Deputy Attorneys General]s have always been required to assist the BLNR in a manner to enable the Board to perform its duties faithfully. Their duty never changed, and they have consistently represented the interests of the BLNR. This differs from [White v. Bd. of Educ., 54 Haw. 10, 501 P.2d 358 (1972).] , in which the deputy attorney general first represented the Superintendent, then the BOE, who could have had differing interests. For all of these reasons, the BLNR did not err in denying Appellants’ motion to disqualify based on White.
Whether the BLNR erred by overruling objections to the participation of BLNR members Yuen and Gon in the contested case hearing after remand.
The court ruled that both Yuen and Gon’s disqualification were not required by due process, and the BLNR did not err by denying Appellants’ request to disqualify them.
Whether the BLNR fulfilled its duties under Article XII, Section 7 and Kā Paʻakai o Ka ʻĀina v. Land Use Commission
The court ruled that the BLNR discharged its Kā Paʻakai duties. On the “first step” of the Kā Paʻakai analysis, the court said:
The BLNR conducted a thorough analysis as required by the first step of the Kā Paʻakai analysis. The BLNR found no Native Hawaiian cultural resources or traditional or customary practices within the TMT Observatory site and Access Way areas. It correctly concluded that the two ahu constructed on the TMT Access Way in 2015 as protests against TMT are not protected as Native Hawaiian traditional or customary rights.
On the second step, which requires the BLNR to make findings regarding the extent to which cultural resources -— including traditional and customary Native Hawaiian rights -— will be affected or impaired by the proposed action:
The BLNR found that the TMT Project will not adversely impact cultural resources, whether in the relevant area of the TMT Observatory site and Access Way, or in other areas of Mauna Kea. If the three ahu in the vicinity of the TMT Observatory site are within the relevant area, the BLNR found that the TMT would not affect them. Also, if the summit is considered to be within the relevant area, the BLNR found that the TMT Observatory will not be visible from Lake Waiau, Puʻu Līlīnoe, or Kūkahauʻula, which are culturally sensitive areas of the summit of Mauna Kea, and that the TMT would not impact the other cultural practices discussed above. The BLNR also found that since 2000, cultural and/or spiritual practices have been occurring while astronomy facilities have existed, and that those activities would not be prevented by the TMT Observatory, which would be located 600 feet below the summit ridge.
The court ruled that the third Kā Paʻakai requirement, which “requires findings regarding the feasible action, if any, to be taken to reasonably protect Native Hawaiian rights if they are found to exist,”
… was not required to be addressed since “Native Hawaiian rights were not found to have been exercised in the relevant area.”
The court also addressed the allegation that BLNR improperly delegated its duty to protect and preserve Native Hawaiian rights under Kā Paʻakai ….
… saying that the alleged delegations “are outside and in addition to Kā Paʻakai requirements, and were imposed to ensure that Native Hawaiian practices in the Mauna Kea area will continue to be protected.”
Whether the TMT Project violates religious exercise rights of Native Hawaiians protected by federal statutes.
According to the court, Kihoi Appellantsʻ assertions that the BLNR erred “by not addressing the substantial burden and impact the TMT would have on their rights under the Free Exercise Clause of the First Amendment to the United States Constitution” is without merit.
Whether the Hearing Officer should have allowed briefing and a hearing on a motion to dismiss based on a request to disqualify UHH as applicant based on its alleged hostility toward the traditional Hawaiian faith.
The Temple of lono wanted to see the University of Hawaiʻi disqualified after it characterized the Temple as “religious fundamentalism” in a written motion. The court dismissed the Temple of Lono argument, stating:
Despite UHH’s reasoning, the tenor of the language in its memorandum was unnecessary. Neither the Hearing Officer nor the BLNR were required to disqualify UHH as the CDUA applicant based on this language, and this argument is without merit.
Whether the Hearing Officer should have excluded challenges to the legal status of the State of Hawaiʻi and its ownership of Mauna Kea as well as the existence of the Kingdom of Hawaiʻi.
Ruling on Appellant Hank Fergerstrom’s assertion that the summit of Mauna Kea, as well as the ahupuaʻa of Kaʻohe in the District of Hāmākua, are lands still held by the Hawaiian Kingdom, the court stated:
The United States Supreme Court has thus indicated that the process by which Hawai‘i was incorporated into the United States was lawful and binding, and we are bound by this determination. In addition, as we stated in State v. Kaulia, “[W]e reaffirm that ‘[w]hatever may be said regarding the lawfulness’ of its origins, ‘the State of Hawaiʻi . . . is now a lawful government.’” 128 Hawaiʻi 479, 487, 192 P.3d 377, 385 (2013) (citing State v. Fergerstrom, 106 Hawaiʻi 43, 55, 101 P.3d 652, 664 (App. 2004)).
The BLNR is bound by the United States Supreme Court’s and this court’s precedents regarding the legal status of the State of Hawaiʻi. Therefore, the Hearing Officer did not err by excluding the proposed evidence.
Whether TMT Project violates Article XI, Section 1 of the Hawaiʻi Constitution and public trust principles.
The court ruled that the “use of the land by TMT is consistent with conservation and in furtherance of the self-sufficiency of the State,” and “we therefore hold that the TMT comports with Article XI, Section 1 public trust principles and that the BLNR met its duties as trustee under the Article XI, Section 1 public land trust through its Decision and Order.”
The public trust doctrine was the focus of Associate Justice Richard Pollack’s Opinion Concurring in Part and Concurring in the Judgment, in which he stated:
In the first opinion by this court in this case, the majority declined to address the application of the public trust doctrine embodied in article XI, section 1 to the potential construction and operation of the Thirty Meter Telescope (TMT or TMT project) on conservation land located on the summit of Mauna Kea, one of the most sacred areas in the state to Native Hawaiians. See generally Mauna Kea Anaina Hou v. Bd. of Land & Nat. Res. (Mauna Kea I), 136 Hawai‘i 376, 363 P.3d 224 (2015). Today, the court only partially rectifies this omission.
Although the majority acknowledges the applicability of the public trust doctrine to conservation land, it does not fully apply its principles. In only partially adopting our precedents that set out public trust principles applicable to state water resources, the majority effectively determines that the natural resources the constitution entrusts to the State for the benefit of the people are governed by different measures of protection. Majority at 49 n.23. But neither the text nor the history of article XI, section 1 provides for differing levels of protection for individual natural resources, such as water as compared to land, and this court should not establish artificial distinctions without a compelling basis for doing so.
Justice Pollack makes a case for “identifying a general framework for evaluating the impact of State actions”, in order to “ensure that all of the public natural resources entrusted to the State for the benefit of the people are afforded the same degree of protection as the text and history of article XI, section 1 attest that the drafters intended.”
“I therefore write separately,” Justice Pollack wrote.
Whether the conditions of HAR § 13-5-30(c) for issuance of a CDUP were satisfied.
Pursuant to HAR § 13-5-24(c)(4) (1994), “astronomy facilities under a management plan approved simultaneously with the [Board] permit” is a permissible land use in the resource subzone, within which the MKSR is situated, the court stated. It also went arguments brought forward alleging a failure to meet some of the “eight criteria”, such as:
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;
Thus, contrary to Appellants’ assertion, there are commitments to restore the abandoned Poliʻahu Road and to decommission three telescopes by the time TMT is operational. There is also a requirement to decommission two additional telescopes by December 31, 2033, a commitment to not seek any additional telescope sites to replace the five telescopes that will be removed, and a plan for decommissioning other telescopes, including the TMT.
The BLNR also recognized that “[t]he incremental nature of a project’s impacts, standing alone, cannot endlessly justify development within an existing developed area[,]” but found that, “in this case, the TMT Project’s compliance with all applicable rules, regulations, and requirements, the Master Plan, CMP, sub-plans, and the TMT Management Plan, along with the mitigation measures committed to in the TMT Final EIS, CDUA, and TMT Management Plan, demonstrate that the TMT Project will not cause substantial adverse impact to the existing natural resources within the surrounding area, community, or region under HAR § 13-5-30(c)(4).” Because (1) the TMT will not cause substantial adverse impact to existing plants, aquatic life and wildlife, cultural, historic, and archaeological sites, minerals, recreational sites, geologic sites, scenic areas, ecologically significant areas, and watersheds, (2) mitigation measures of restoring the abandoned Poliʻahu Road and decommissioning five telescopes will be adopted, and (3) other measures to lessen the impacts of the TMT will be adopted, the BLNR did not clearly err in concluding that the TMT will not have a substantial adverse impact to existing natural resources within the surrounding area, community, or region, as prohibited by HAR § 13-5-30(c)(4).
HAR § 13-5-30(c)(5) The proposed land use, including buildings, structures, and facilities, shall be compatible with the locality and surrounding areas, appropriate to the physical conditions
In this case, it is true that Astronomy Precinct is 525 acres, and much larger than the site evaluated in Kilakila III. Under the MKSR Master Plan, however, astronomy development is restricted to a defined 150-acre portion of the 525-acre Astronomy Precinct. The issue raised by Appellants regarding HAR § 13-5-30(c) is whether “[t]he proposed land use . . . [is] compatible with the locality and surrounding areas. . . .” The BLNR noted that the proposed location of the TMT Project is a half mile from the summit area, in proximity to the eleven other previously developed facilities for astronomy within the Astronomy Project. Therefore, on these facts, we cannot say that the BLNR erred in concluding that the TMT Project is “compatible with the locality and surrounding areas.”
HAR § 13-5-30(c)(6) The existing physical and environmental aspects of the land, such as natural beauty and open space characteristics, will be preserved or improved upon, whichever is applicable;
The BLNR cites to various measures, including the removal of telescopes from the summit ridge, which will be taken to preserve the natural beauty and open space characteristics of the land. Furthermore, the University formally committed that this is the last new area of Mauna Kea where a telescope project would be sought. The BLNR’s findings with respect to HAR § 13- 5-30(c)(6) are not clearly erroneous.
Whether the original CDUA should have been stricken and a new CDUA required.
Appellants assert they were not given an opportunity to comment on the actual entity for which the CDUP was ultimately intended. Appellants had ample opportunity during the contested case hearing, however, to comment on TIO, challenge its participation by opposing its admission as a party, and crossexamine its witnesses. Therefore, this point of error is without merit.
What the nature of the proceeding was below, and whether there is an appropriate record on appeal.
The Hearing Officer therefore appropriately included in the record on appeal filings from the contested case up until the point in time that the CDUA was originally approved. She then continued the proceeding from that point, with filings and evidence from the second contested case hearing. This point of error is therefore without merit.
Whether TIO and PUEO should have been admitted as parties.
The Hawaiʻi Supreme Court ruled that the intervention of new parties on remanded “was not erroneous.”
Whether the Hearing Officer’s scheduling of presentations by the parties violated Appellants’ due process rights.
The Hawaiʻi Supreme Court ruled the Appellants were provided their due process right “to be heard at a meaningful time and in a meaningful manner[.]”
Whether the Hearing Officer improperly failed to provide required rulings and explanations for thousands of proposed findings of fact.
The court ruled that appellant Temple of Lonoʻs alleged point of error “that without specific rulings on each proposed finding, a party is left to first search out which proposed findings the Hearing Officer rejected” is without merit.
Sacred Mauna Kea 