The contested-case hearing officer has issued his findings on the Thirty Meter Telescope proposed to be built on Mauna Kea. The recommendations of attorney Paul Aoki, released on November 30, give the applicant University of Hawai`i-Hilo and the Thirty Meter Telescope Corp. pretty much everything they had sought.
By contrast, those opposed to the Conservation District Use Permit issued for the project– most of them Native Hawaiians, but also Deborah Ward, who was granted standing based on her recreational use of Mauna Kea and her interest in its natural history, flora, and fauna – probably found little comfort in Aoki’s report.
With respect to the flora, the university’s expert, Dr. Clifford Smith, testified that the telescope site had a very low diversity and cover of plants such as algae, liverworts, mosses, and lichens. “All of the species are found at lower elevations … None of the lichen or moss species are unique to Hawai`i,” Aoki wrote, having found Smith’s testimony convincing.
As for the claim of harm to the celebrated wekiu bug by the construction or operation of the telescope, Aoki waved that away as well. Jesse Eiben, the entomologist who had studied the insect, gave testimony on behalf of the university that, in Aoki’s view, put paid to such concerns. “It is highly unlikely that the substrate modification by construction activities … would have a significant impact on wekiu bug population,” he wrote in his proposed findings of fact. “The limited number of wekiu bugs that are likely to be killed by TMT project activities is so small they could be replaced by one hour of normal wekiu bug propagation by the rest of the wekiu bug population above 13,000 feet.”
Aoki took note of the dissenting views of the petitioners with respect to the mountain’s natural resources, especially those of Ward. “The majority of Ms. Ward’s written testimony focused on the wekiu bug,” Aoki wrote. “Unlike Mr. Eiben, however, who was qualified as an expert entomologist with particular expertise in the wekiu bug, Ms. Ward is not an entomologist; her background is principally in horticulture.”
Further, Aoki wrote, “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, including 2011.”
The claims the petitioners made with respect to Hawaiian sites were dismissed; the proposed site, Aoki found, avoided any legitimate prehistoric sites.
In her testimony, archaeologist Sara Collins, formerly with the Department of Land and Natural Resources’ Historic Preservation Division, distinguished between historic properties, on the one hand – including shrines, adze quarry complexes and workshops, burials, stone markers or memorials, and the like – and, on the other, “find spots,” sites that may superficially resemble historic properties but which are of recent origin. Several historic sites were found near the proposed TMT site or its access way, though none was closer than 200 feet. Two “find spots” were identified in the observatory area as well, but staff from the State Historic Preservation Division determined that one of them had been built within the last decade, while the other one was most likely a natural feature.
One of the petitioners, E. Kalani Flores, claimed in his closing arguments that find spots had been omitted from the TMT Conservation District Use Application.
Aoki was having none of it. “Mr. Flores’s assertion … does not constitute evidence; and Petitioners have no competent or credible evidence to support this position.”
Probably the thorniest issues confronting the hearing officer concerned cultural practices. Several of the petitioners claimed that the TMT would have a damaging impact on their ongoing cultural practices and their systems of belief.
“No cultural practices are known to be associated with a specific historic property that has been identified in or near the TMT Project site,” Aoki found.
“In addition, because of their individual beliefs, for some individuals, the introduction of new elements associated with the TMT Project … would adversely affect the setting in which such [cultural] practices could take place … [but] this is not anticipated to result in a substantial effect on shrine construction, pilgrimage, prayer, and offerings in the [Mauna Kea Science Reserve].”
As to the claims of several of the petitioners that the construction project is contrary to their beliefs, Aoki wrote, the petitioners themselves “also acknowledge that native Hawaiian cultural and religious practices are not codified… and some native Hawaiians … support the project and testified that it would have no impact on their cultural practices.”
Already, Aoki continued, “the university and the TMT Corporation have … taken and have committed to take numerous measures to avoid and minimize direct and indirect impacts on cultural practices,” including ongoing worker training and the selection of a site off the summit and away from known historic and traditional cultural properties.
Claims that important cultural viewplanes and lines of sight would be impaired by the telescope were dismissed. Aoki gave special attention to the arguments of Kealoha Pisciotta of Mauna Kea Ainana Hou that the TMT would interfere with the tracking of 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 this wobble to make a complete cycle.” Tracking the wobble is vital to Hawaiian celestial navigation, she claimed, since the navigators need to know where the wobble is in order to locate pole stars.
“Ms. Pisciotta’s testimony did not provide any facts to demonstrate that ancient Hawaiians had a traditional and customary practice of tracking the precession from Mauna Kea,” Aoki wrote. “Perhaps even more significantly, she did not testify that she (or anyone else) has a modern practice in 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.”
In any event, Aoki found credible the contrary testimony of Chad Baybayan, a Hawaiian navigator. “He explained that most of traditional naked eye navigation is done without seeing the pole star Polaris,” Aoki wrote. “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.”
Petitioner Paul Neves testified that irrespective of what could or could not be seen from the summit, “these are alignments not of the eye but of the heart.” “He emphasized,” Aoki wrote, “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 described by Mr. Neves and other Petitioners are undoubtedly heartfelt,” Aoki wrote, “but they are not the subject of Haw. Admin. R. § 13-5-3(c)(4).”
Harm to Hawaiians?
The petitioners brought forward two witnesses, Kawika Liu and Kehaulani Kauanui, who claimed the very construction of the TMT would inflict further harm to the Hawaiian population at large.
Aoki did not find their testimony convincing.
“Dr. Liu testified that his opinion is based on a hypothesis and that neither he nor anyone else has done the research necessary to validate his hypothesis about the potential effects of ‘multi-generational trauma’ on the health of native Hawaiians, or how such a hypothesis would relate, if at all, to telescopes on Mauna Kea,” Aoki wrote.
“Dr. Kauanui based her opinions on the assumptions that the TMT Project will involve destruction of historical sites, archaeological sites, and burial grounds,” Aoki continued. “Those assumptions are refuted by the facts adduced at the hearing. Dr. Kauanui also conceded that she is categorically opposed to all telescopes on Mauna Kea, that she formed her opinions long before the CDUA for the TMT Project was even filed, and that no matter where on Mauna Kea a telescope was located and what mitigation measures were employed, she would still view any telescope as unlawful desecration…. In other words, Dr. Kauanui’s opinions disregard and are contrary to both the facts of the current Application and the applicable regulatory and legal framework.”
The petitioners and the applicant were given until December 27 to submit any exceptions to the hearing officer’s report. They then have until January 10 to file responsive briefs. On January 30, the Land Board will hear oral arguments at a special meeting to be held at 11 a.m. in the Hawai`i County Council chambers.
There is no time frame for the Land Board to make its final decision on the application. Not until that happens will the matter be ripe for appeal to Circuit Court, should the parties that do not prevail decide to follow that route.
— Patricia Tummons
Volume 23, Number 7 January 2013