Land Board Gives Final Approval to Permit for Thirty Meter Telescope

posted in: DLNR, May 2013, Telescopes | 0

The scene outside the Hawai`i County building in Hilo was as colorful as it was noisy the morning of February 12. Groups of Native Hawaiians and others opposed to the construction of the Thirty Meter Telescope, many decked out in the billowing skirts of kahiko hula or draped in kihei of scarlet and gold, beat drums, blew conchs, and chanted.

Just down the street, dozens of protesters in more conventional attire, many of them summoned by the Chamber of Commerce or labor unions, signaled their support of the project by waving bright yellow “Thirty Meter Telescope YES!” signs and flashing shakas at passing traffic. Car horns added to the cacophony, though it was rarely possible to know where a given driver’s sentiments lay.

Inside, the county council chamber was slowly filling as both supporters and opponents of the telescope gathered to witness final arguments in the contested case hearing on the Conservation District Use Permit that is needed to allow the telescope, with an 18-story-high dome and half-acre support building, to be built in an area called the northern plateau, some 300 feet below the area where most other telescopes have been built on Mauna Kea.

As the scheduled start of the hearing approached, project opponents began a long procession into the chamber, a deafening drum accompaniment echoing through the building’s central atrium. Entire classes of students from a Hawaiian-language immersion school paraded in, many of them holding aloft their hands strung with a cat’s-cradle of red cord forming triangles to represent the mountain.

Several of the Hawaiian petitioners sprinkled seawater around the board members seated at the council dais, a ceremony intended to purify the site and remove harmful influences.

Once the hearing began, only those who had been officially admitted as parties to the contested case were allowed to address members of the Board of Land and Natural Resources. It was their approval of the permit almost exactly two years earlier that was the subject of the contested case hearing, and on this day, the petitioners as well as the applicant would be given a chance to tell the board directly what they thought of the recommended findings of the hearing officer.

Notwithstanding the theatrical demonstrations, and with the exception of an outburst from Abel Lui, a Hawaiian evicted from county land after years of litigation, the arguments of proponents as well as opponents shed no new light on the issues at the heart of the dispute. They did, however, give board members some idea of just how high passions ran.

Exactly two months later, on April 12, the Land Board met again to decide the matter. No pomp or theater this time. No chants, no sign-waving, no buttons or cat’s cradles. Not even an audience.

And, just as they did two years earlier, the six board members, including chairman William Aila and Sam Gon (both respected Hawaiian cultural practitioners), unanimously approved the permit allowing construction of the $1.3 billion telescope. More precisely, they approved hearing officer Paul Aoki’s proposed findings of fact, conclusions of law, and decision and order practically as he had submitted it last November.

By press time, none of the six petitioners had appealed the Land Board decision to state circuit court.

Rejected Claims
While the conditions imposed on the TMT are far stricter than those in permits issued for telescope construction in the past, most if not all of them were proposed by the TMT Observatory Corporation itself and included in the project’s environmental impact statement and management plan.

By contrast, the arguments of the petitioners were by and large categorically rejected:

The telescope will harm the wekiu bug: Addressing this claim, the hearing officer wrote: “Petitioners generally dispute [the applicant’s] positions regarding the fauna and flora in the vicinity of the Project, primarily through the testimony of Ms. [Deborah] Ward. The majority of Ms. Ward’s written testimony focused on the wekiu bug. Unlike Mr. [Jesse] Eiben, however who was qualified as an expert entomologist with particular expertise in the wekiu bug, Ms. Ward is not an entomologist… The documents relied upon by Ms. Ward to support her concerns regarding the wekiu bug all date from 1996 or earlier… Mr. Eiben’s research is more current, occurring over the last six years.”

It will damage historic sites: Archaeologist Sara Collins, formerly with the State Historic Preservation Division and now with Pacific Cultural Surveys, Inc., was retained to conduct a survey of historic sites in all the areas that might be affected by the telescope construction. “All of the [surveys] done of the summit area of Mauna Kea have been reviewed by SHPD; SHPD determined that the TMT Project would have no significant impact on the historic properties,” Aoki wrote. Two modern-era “find spots” were identified in the area where the telescope is to be built, but, he noted, neither can be considered a “Historic Property.” Kalani Flores, a member of the Case-Flores Ohana, which was admitted as a petitioner, “claimed that the [Conservation District Use Application] was incomplete because ‘[t]here’s find spots there that are left out of the map’,” Aoki noted. “Mr. Flores’s assertion was made in closing argument and does not constitute evidence; and Petitioners have no competent or credible evidence to support this position…. ‘[F]ind spots’ are modern, are not historic properties… and SHPD found no incompleteness.”

It will interfere with cultural practices: Many of the Hawaiian petitioners – Kealoha Pisciotta, the Flores-Case Ohana, Clarence Kukauakahi Ching, and Paul Neves – asserted that the presence of the telescope would interfere with or block their cultural practices at the summit. First of all, Aoki determined that they “did not offer testimony or evidence that would support a finding that these practices are connected to a firmly rooted traditional or customary native Hawaiian practice dating back to 1892” – and therefore legally protected. They did testify to such practices as stacking rocks, “tracking the so-called ‘precession,’ and practices related to viewplanes,” Aoki wrote. With regard to the stacking of rocks, “Neither Ms. Pisciotta nor any of the other petitioners … testified that any of petitioners engages in this practice, much less that such practice of theirs would be adversely affected by the TMT.”

Pisciotta also testified about “an abstract ‘need to track the precession,’ which she described as a ’26,000 year cycle … [that] is the measure of the wobble of the earth’s axis, and the time it takes for the wobble to make a complete cycle.’ According to Ms. Pisciotta, tracking this ‘wobble’ is important because ‘relative to earth the pole stars appear to change over time’; ‘[i]f the pole stars change it drastically impacts navigation’; and if these changes are not noted, celestial navigators will get ‘lost at sea’.” However, he continued, she did not provide any evidence to suggest Native Hawaiians tracked the precession from Mauna Kea: “Perhaps even more significantly, she did not testify that she (or anyone else) has a modern practice of tracking the precession from Mauna Kea. And, she did not identify any way in which building the TMT Project would interfere with anyone trying to track the precession.”

The testimony of Chad Baybayan, a Hawaiian navigator appearing as a witness for the university, undercut the claims of the importance of the precession. “He explained that most of traditional Polynesian naked eye navigation is done without seeing the pole star Polaris, … refuting the suggestion that celestial navigators will get lost at sea if they do not track changes in the location of the pole stars over time. He further testified that according to his training and practice, traditional celestial navigation is not dependent on going to the summit of Mauna Kea and making observations from there.”

Hours were spent in the contested case with the petitioners discussing how the telescope would interfere with important viewplanes from the summit to other islands or landmarks. Several of the maps submitted to illustrate them were challenged by the lawyers for the applicant, the University of Hawai`i-Hilo, as having come from a document that had been digitally altered to bolster the petitioners’ claims. Although the petitioners disputed that, in his findings of fact, Aoki determined that the maps had, indeed, been altered. In any event, Aoki found, the maps were irrelevant: “All of the identified viewplanes represented to be of significance to cultural practices … emanate from a single point: the actual summit of Mauna Kea, located on Pu`u Wekiu. It is undisputed that the TMT Observatory will not be visible from Pu`u Wekiu. Therefore it will not obstruct any viewplanes from Pu`u Wekiu and will not interfere with any practices involving viewplanes from Pu`u Wekiu.”

Petitioner Paul Neves “testified that ‘these are alignments not of the eye but of the heart.’ … He emphasized that even if the TMT Observatory will not visually obstruct a viewplane, merely knowing that the Observatory is there will offend his beliefs… These types of emotional impacts … are undoubtedly heartfelt, but they are not the subject of” Hawai`i administrative rules, Aoki wrote.

It will harm groundwater resources: “The watershed recharge areas for Mauna Kea occur at lower elevations where it rains, and not in alpine deserts, where precipitation is minimal,” Aoki wrote. “The impact from any theoretical waste spill at the Project location would be negative. However, it would be unlikely that any spill would be large enough that it would have any impact on the drinking water for Hawai`i County. The main threats to Mauna Kea’s aquifer occur at lower elevations in areas of heavier population and use.”

As to the petitioners’ “generalized ‘concerns’ about water issues, including runoff, Lake Waiau, and groundwater,” Aoki continued, “they did not substantiate those concerns with credible evidence. By contrast, the University established through reliable, probative, substantial and credible evidence … that Petitioners’ concerns about water issues are unsupported.”

Conditions
Among the conditions in the Conservation District Use Permit, the TMT is to provide $1 million annually in funds to a community benefits package, to be administered by a board of advisors to The Hawai`i Island New Knowledge (THINK) Fund. It is also to partner with other institutions to develop a Workforce Pipeline Program that is to train local residents for jobs in science, engineering, and other technical fields.

The TMT Observatory Corporation is also to pay “substantial” rent, to be deposited into the Mauna Kea Land Fund and used only for management of Mauna Kea.

In addition, the CDUP includes, by reference, all the promised cultural and environmental mitigation measures included in a host of planning documents, such as the TMT Management Plan, the EIS, and the CDUA application.

The DLNR has posted several of the documents associated with the TMT application on its website. See:http://hawaii.gov/dlnr/occl/manuals-reports

For details on the contested case hearing, see the articles in the January 2012 edition of Environment Hawai`i.

Volume 23, Number 11 — May 2013
 

 

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