Case Notes

• Publication year: 2019
• Citation: Vol. 23 No. 02

CASE NOTES

Appeal Pointer

A statement of jurisdiction may be stricken unless a copy of the judgment or order appealed from is attached to it. HRAP 12.1(d).

Supreme Court

In the Matter of Contested Case Hearing Re Conservation District Use Application (CDUA) HA-3568 for the Thirty Meter Telescope at the Mauna Kea Science Reserve, Kaohe Mauka, Hamakua, HI, TMK (3) 404015:009, SCOT-1-0000777, SCOT-17-0000811, and SCOT-17-0000812, November 30, 2018.

Amended Opinion

In the Matter of Contested Case Hearing Re Conservation District Use Application (CDUA) HA-3568 for the Thirty Meter Telescope at the Mauna Kea Science Reserve, Kaohe Mauka, Hamakua, HI, TMK (3) 404015:009, SCOT-1-0000777, SCOT-17-0000811, and SCOT-17-0000812, November 30, 2018, (McKenna, J. in which Pollack, J., joins except as to Part VC. 1). These appeals were filed from a September 27, 2017 decision of the Board of Land and Natural Resources ("BLNR") authorizing issuance of a Conservation District Use Permit for the Thirty Meter Telescope ("TMT") near the summit of Mauna Kea. Appellant Native Hawaiian1 cultural practitioners believe that Mauna Kea, as a sacred manifestation of their ancestry, should be honored in its natural state and is desecrated by development of astronomy facilities near its summit. In contrast, Appellees submitted that telescope use is an allowed and appropriate use of the summit area, that various measures are being taken to reduce the impact of the TMT, and that Mauna Kea can also be honored through the advancement of scientific knowledge that TMT would provide. In this opinion, the Hawaii Supreme Court addressed whether the BLNR properly applied the law in analyzing whether a permit should be issued for the TMT and affirmed the BLNR's decision authorizing the issuance of a Conditional District Use Permit.

Amended Dissenting Opinion

In the Matter of Contested Case Hearing Re Conservation District Use Application (CDUA) HA-3568 for the Thirty Meter Telescope at the Mauna Kea Science Reserve, Kaohe Mauka, Hamakua, HI, TMK (3) 404015:009, SCOT-1-0000777, SCOT-17-0000811, and SCOT-17-0000812, November 30, 2018, (Wilson, J.).

The degradation principle. The Board of Land and Natural Resources (BLNR) grounds its analysis on the proposition that cultural and natural resources protected by the Constitution of the State of Hawaii and its enabling laws lose legal protection where degradation of the resource is of sufficient severity as to constitute a substantial adverse impact. Because the area affected by the Thirty Meter Telescope Project (TMT or TMT project) was previously subjected to a substantial adverse impact, the BLNR found that the proposed TMT project could not have a substantial adverse impact on the existing natural resources. Under this analysis, the cumulative negative impacts from development of prior telescopes caused a substantial adverse impact; therefore, TMT could not be the cause of a substantial adverse impact. As stated by the BLNR, TMT could not "create a tipping point where impacts became significant." Thus, addition of another telescope—TMT—could not be the cause of a substantial adverse impact on the existing resources because the tipping point of a substantial adverse impact had previously been reached. Appellants objected to the principle advanced by the BLNR that "without the TMT Project, the cumulative effect of astronomical development and other uses in the summit area of Mauna Kea have previously resulted in impacts that are substantial, significant and adverse" and, therefore, "[t]he level of impacts on natural resources within the Astronomy Precinct of the [Mauna Kea Science Reserve (MKSR)] would be substantially the same even in the absence of the TMT Project[.]" In other words, BLNR concluded that the degradation to the summit area has been so substantially adverse that the addition of TMT would have no substantial adverse effect. Thus, while conceding that Mauna Kea receives constitutional and statutory protection commensurate with its unchallenged position as the citadel of the Hawaiian cultural pantheon, the BLNR applied what can be described as a degradation principle to cast off cultural or environmental protection by establishing that prior degradation of the resource—to a level of damage causing a substantial adverse impact—extinguishes the legal protection afforded to natural resources in the conservation district. The degradation principle ignores the unequivocal mandate contained in Hawaii Administrative Rules § 13-5-30(c)(4) prohibiting a Conservation District Use Permit ("CDUP") for a land use that would cause a substantial adverse impact to existing natural resources. The BLNR substituted a new standard for evaluating the impacts of proposed land uses, a standard that removes the protection to conservation land...