Long, Drawn-Out Contested Case over TMT Permit Enters Final Phase

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For scientists looking for clues to the formation of the universe at its very edge, nearly 14 billion light years away, the Thirty-Meter Telescope proposed to be built on Mauna Kea is the holy grail of astronomy.

To the several Hawaiians contesting its construction, it’s the mountain itself that is holy. Building another telescope near its summit would be sacrilegious, they say, and infringe on their protected rights to worship their deities and celebrate their culture in accordance with tradition and custom.

Sorting out their competing claims falls to attorney Paul Aoki, the hearing officer who presided over the long contested case over the decision last February of the Board of Land and Natural Resources to grant a Conservation District Use Permit to the University of Hawai`i-Hilo for construction of the TMT. (The telescope is to be built by a private non-profit entity, the TMT Observatory Corporation, based in Pasadena, but the application for the CDUP was made by the university.)

The six-day hearing stretched over six weeks, from mid-August to the end of September and, in the annals of contested cases, has to rank as one of the more colorful ones. In addition to the testimony of environmental planners, scientists, an archaeologist, an entomologist, and a botanist – the types of witnesses one usually expects to testify in such cases – there were Hawaiian songs, hula, chants, genealogies, and personal statements of revealed religion.

By the end of November, the applicant and the petitioners, collectively, had submitted to Aoki their respective proposed findings of fact, conclusions of law, and decision and order. The next step in the process is for Aoki to draft his own findings and recommendations, which is expected to occur sometime this month. After that, his findings will be forwarded to the Land Board for a final decision.

Of course, final need not mean the end of things. Whatever decision the board takes may be appealed in the courts.

An Unusual Case

The dispute was unusual in several respects.

First, there is the sheer size and scope of the project. The Thirty Meter Telescope, if built, will be the largest optical telescope in the world. Its dome will be just under 190 feet high, and the facility (including support buildings and apron) will occupy roughly five acres. It will not be built on the summit ridge of Mauna Kea, but rather is proposed for the northern plateau, an area of relatively flat terrain jutting out from the northern slope of the mountain about 500 feet below the area where most observatories are now clustered.

Then there is the number of petitioners involved in the contested case. Seven petitions were received; the Land Board granted standing to six of them.

Although each petitioner was deemed to have interests distinguishable from those of the general public, in many instances, their interests were not uniquely theirs.

Four of the petitioners claim to engage in traditional and customary Hawaiian practices on the summit – Clarence Kukauakahi Ching, the unincorporated group Mauna Kea Anaina Hou (led by Kealoha Pisciotta), the Flores-Case `Ohana, and Paul Neves. They argued that the telescope construction would offend their beliefs and interfere with their practices.

Another petitioner, the nonprofit group KAHEA: The Hawaiian Environmental Alliance, also claimed in its petition that its members included Native Hawaiian cultural practitioners.

Ching stated that he was also interested in protecting trails, which he has hiked extensively – an undertaking that he says allows him to follow in the footsteps of his Hawaiian ancestors. Petitioner Deborah Ward also claimed to have hiked the trails and enjoyed the mountains cultural and natural resources for 40 years.

Ward, a member of the environment committee of the Office of Mauna Kea Management, also claimed a special interest in protecting the wekiu bug (Nysius wekiuicola), which, at the time the contested case hearing began, was a candidate species for listing under the federal Endangered Species Act. KAHEA likewise claimed an interest in protecting the mountain’s natural resources.

To underscore further the close ties between the petitioners, during the course of the hearing, Pisciotta, the president of Mauna Kea Anaina Hou (and its representative during the hearing) mentioned that she had been elected president of KAHEA as well.

Most, if not all, of the petitioners have, at one time or another, represented themselves as part of something called the Mauna Kea Hui, which, for the duration of the contested case hearing, was featured on the KAHEA website.

Although the telescope, with an estimated construction cost of $1.1 billion, is the project of the TMT Observatory Corporation, the University of Hawai`i at Hilo was the applicant for the permit from the Land Board. The observatory corporation is a nonprofit, founded in 2003 by the University of California, the California Institute of Technology, and the Association of Canadian Universities for Research in Astronomy (ACURA). Since then, the U.S.-based Association of Universities for Research in Astronomy (AURA) and research arms of the Japanese, Chinese, and Indian governments have joined in the project. The Gordon and Betty Moore Foundation has provided much of the corporation’s initial funding.

The duration of the case is yet another unusual aspect. Initially, the hearing officer anticipated that direct testimony, cross examination, and summations could be concluded in four days in August. It took three more days, stretched over the next five weeks, for the testimony and arguments to draw to a close.

The Background

Over the last decade, the development of new telescopes on the summit of Mauna Kea has become fraught with controversy, as environmentalists and Native Hawaiians have claimed the siting of observatories on the mountain has destroyed natural resources and has interfered with the Hawaiians’ traditional, customary, and religious practices.

To address these concerns, the University of Hawai`I, which has a lease from the Department of Land and Natural Resources to develop astronomy on 11,288 acres of the mountain, adopted a master plan for the summit in 2000 (not submitted to or approved by the Land Board) and a comprehensive management plan (or CMP, approved by the Land Board in 2009) that sets forth ways in which natural resources, archaeological sites, and the practices of Native Hawaiians will be protected, among other things. Several of the same petitioners in the TMT case have sued over the Land Board’s denial of their request to have a contested case hearing over adoption of the CMP. The 3rd Circuit Court rejected their claims; an appeal is pending before the Intermediate Court of Appeals, which heard oral arguments in November.

Also, the university established the Office of Mauna Kea Management (OMKM), which is administered through the University of Hawai`I at Hilo, to oversee astronomy-related activities, commercial operations, and other activities within the leased area, including such things as snow-plow operations, road closures during inclement weather, ranger employment, and the like.

Excluded from the university lease area is the Mauna Kea Ice Age Natural Area Reserve, administered by the Department of Land and Natural Resources. This consists of two parcels totaling roughly 3,900 acres – a large, wedge-shaped parcel of 3,750 acres south of the summit area, containing an adze quarry used by Hawaiians from about 1100 A.D. up to the time of Western contact, and Lake Waiau, a small impoundment; and a smaller, 150-acre square parcel to the west of the summit, which encompasses Pu`u Pohaku and contains one of the few examples of permafrost in the tropics.

In 2007, the TMT Observatory Corporation began to consider candidate sites for the telescope. Five sites were considered – three in Chile, one in Mexico, and Mauna Kea. In September 2008, the University of Hawai`I published an environmental impact statement preparation notice for the project, and in May the following year, the draft EIS was released for public comment. In July 2009, the TMT opted to go with the Mauna Kea site rather than build in Chile. The May 8, 2010 Notice published by the state Office of Environmental Quality Control announced that Governor Linda Lingle had accepted the final EIS for the project. None of the petitioners or any one else, for that matter, challenged its adequacy during the 60-day window provided for legal action.

In the next few months, the UH Board of Regents and the Mauna Kea Management Board (which directs the OMKM) endorsed the plan, with the UHH chancellor, Donald Straney, being authorized to submit the Conservation District Use Application on behalf of the TMT. He did so on September 2, 2010.

The Land Board held hearings on the CDUA on the Big Island in December. On February 25, 2011, it voted to approve the Conservation District Use Permit (CDUP) for the project. The contested-case hearing petitions were received thereafter, setting the current process in motion.

* * *

Meeting the Criteria

Whether or, if so, how, the telescope would meet the eight criteria listed in the Department of Land and Natural Resources’ rules for Conservation District permits was supposed to be the framework within which questions and testimony were to be posed during the contested case hearing.

But, as the hearing progressed, that framework was stretched to include a wide, and at times odd, variety of issues.

The DLNR’s rules on Conservation District uses state that, before granting a permit, the Land Board is to “apply the following criteria:”

  • The project is to be consistent with the purpose of the Conservation District;
  • It is also to be consistent with the objectives of the Conservation subzone where the use will occur;
  • It is compliant with the Coastal Zone Management Act, where applicable;
  • It will not “cause substantial adverse impact to existing natural resources” in the surrounding area;
  • It will be “compatible with the locality and surrounding areas, appropriate to the physical conditions and capabilities of the specific parcel”;
  • It will preserve or improve upon existing physical and environmental aspects of the land, “such as natural beauty and open space”;
  • No subdivision will be allowed that may increase the intensity of land uses; and
  • It will not harm public health, safety, and welfare.

The parties disagreed as to whether all eight criteria had to be met. The university’s attorneys – primarily Tim Lui-Kwan, Ian Sandison, and Jay Handlin, of the law firm Carlsmith Ball – argued that not all need be met (although, in any event, they said, the project met all eight). The petitioners, on the other hand, maintained that the project failed to meet even one of the criteria.

Public Health, Safety, Welfare

Much of the hearing dealt with the question of whether the TMT was an affront to Native Hawaiian religion and practice. Two of the witnesses the petitioners presented to bolster this position were David M.K.I. “Kawika” Liu, a physician practicing on Moloka`i, and Kehau Kauanui, an associate professor of anthropology and American Studies at Wesleyan University.

Liu was offered as an expert in public health and Native Hawaiian health issues, although he asked to restrict his qualification to “public health relating to Native Hawaiians.” Liu claimed that colonialism and the Hawaiians’ loss of self-determination affected their health adversely. The presence of telescopes on Mauna Kea was a continual reminder of their loss, he said. “The continued construction on Mauna Kea’s upper regions against protests by Native Hawaiian cultural and religious practitioners is a grave example of colonial impositions on our self-determination,” he stated in his written testimony.

“This ongoing violation of Hawaiians’ religious and cultural attachments to Mauna Kea is linked to a colonial, systemic deprivation of self-determination that is materially detrimental to Native Hawaiian health, individually and as a people,” he continued. “Colonization itself cannot be separated from ill-health.” What Native Hawaiians were suffering, he said, was “multigenerational trauma” – “a loss of self-esteem, fatalism, and a deterministic worldview that particularly impacts Native Hawaiians. It is a kind of historical consciousness, an individual and group awareness of past events that create a tense political context, cultural discontinuity, loss of cultural cohesion, and loss of social moorings. All of these factors can lead to substance abuse, family disintegration, and suicide…. Projects such as the Mauna Kea telescope may further contribute to Native Hawaiian health disparities, both now and in the future.”

In his oral testimony, Liu acknowledged that no data existed to link telescope construction to the health of Native Hawaiians. “The data does not exist,” he said. “It has not been specifically researched, and the reason is, we don’t even have – there’s several tools used to collect data nationally – tools that are not being used specifically that collect for Native Hawaiians on a population-level basis, such as is being done on the continent.”

“My research applies to how broad mechanisms, such as historical trauma in the past, may relate to health,” Liu testified. He then gave the example of someone who is “a lineal descendant or a cultural practitioner who is on the island and opposed to construction. This person probably, unfortunately, may already have risk factors, such as age, gender, weight, hip circumference, cholesterol, blood pressure, which may or may not have reached pre-disease or disease state. But the research that others have done and which I’m doing, as well, suggest that things that have happened in the past, such as the overthrow, or more recently, statehood, or loss of lands in adverse possession cases, or situations such as this, may directly affect a person’s health.”

He linked opposition to the TMT to the struggle for self-determination. “We can’t control if someone is a male. We can’t control history. But we can control the stresses a person is under,” he said. “That’s why the struggle for self-determination is so important to health. To me, that’s the important thing about the TMT case. Certainly, there are Hawaiians who will not be affected. One can’t totalize. But for people, the higher their traditional affiliation, the higher their connection to this, the more they’ll be affected.”

He acknowledged that some Native Hawaiians were “very supportive” of the TMT project. “But, also, there are Hawaiians who are very opposed to it that will be affected,” he continued. “What that means ins the long term, over their life span, I can’t tell you, but I can say to a degree of medical certainty that they will be affected.”

Liu faced tough questioning from attorney Jay Handlin, who challenged what Liu described as his theory of multigenerational trauma affecting Hawaiian health, pointing out that neither Liu nor anyone else had done any of the necessary long-term studies to support the theory.

“As we sit here today,” Handlin said, “is it fair to say your postulation of multigenerational trauma has not been validated?”

“I’d say that’s true,” Liu acknowledged.

Handlin continued: “So your opinion that [telescopes] are bad for the health of Native Hawaiians is premised on your hypothesis of multigenerational trauma being correct?”

Liu disagreed. “No,” he answered, “it’s based on my discussions with the petitioners. And it’s not multigenerational trauma. It’s stress loads.”

He went on to suggest that historical trauma may not even be perceived by those who suffer from it. “People have visceral reactions to certain things… For example, the theory originated among Holocaust survivors; children had worse health than survivors. They were exposed to something during their upbringing that led to heart disease and other factors… I would imagine that evidence will show in the long run that many Native Hawaiians are subject to historical trauma even if they believe they are not affected by it. That’s because, at an unconscious level, one can talk of cultural DNA as a means of transmitting historical memories… For example, you can drive by a parcel that used to be a kuleana, or even seeing an American flag.”

Handlin asked if Liu had studied whether the health of Native Hawaiians who oppose the telescope is any different from the health of supporters. He answered by saying he had had no time to do that. He also said he had not studied whether the health of Hawaiians who don’t know anything at all about the telescopes is different.

“If you did those studies, and there was no difference, that would undermine your hypothesis?” Handlin asked.

“That’s the basis of science,” Liu answered.

Handlin then asked whether the word “telescope” ever appeared in any of Liu’s articles relating to public health issues concerning Native Hawaiians.

“I don’t remember,” he replied. “I don’t believe so.”

On cross examination, Liu stated that none of the mitigation measures offered – painting the dome silver (so as to make it less noticeable from a distance), setting up a fund to benefit the community and develop a work force, and other measures – would offset the harm to Native Hawaiians. “To people with strong cultural affiliation,” Liu said, “these would not be ameliorative facts to the construction” of the telescope.

Kehau Kauanui gave her testimony via phone from the mainland. She claimed that the proposed telescope construction “is a textbook case of 21st century colonialism … [that] relies on structural violence and cultural violence.” It was, she continued, “the domination of physical space by the colonizer.”

Under Hawai`i law, she continued, it is illegal to desecrate a place of worship by defacing, damaging, polluting, or otherwise mistreating it “in a way that the defendant knows will outrage persons.” The construction of the TMT, she said, “would constitute a violation of this state law.”

“The telescopes are a constant reminder of the state’s willing degradation” of Hawaiians’ culture and religion – and of their well-being in general, she testified.

There was, she maintained, a “different epistemological framework” between the University of Hawai`i and Hawaiians. “The university has called Hawaiians backward-looking… [but] to be backward-looking in Hawaiian epistemology is to be forward-looking. The future of Mauna Kea is at stake in this case. To even characterize the petitioners as backward-looking is a colonial gesture… [It] subordinates Hawaiians to the notions of civilized people who advance scientific progress.”

In his cross-examination, Handlin brought out the fact that Kauanui had in 2009 signed a statement, along with several other Native Hawaiian scholars, attesting that further construction of telescopes on Mauna Kea would be illegal. Even before the Conservation District application was filed, Handlin asked her, had she already formed her opinion on the matter?

Kauanui responded that yes, she had.

“Given that, no matter what the university proposed to do with respect to the Thirty Meter Telescope or with respect to where on Mauna Kea they proposed to put it, as long as they were proposing to build a telescope on the summit area of Mauna Kea, you’re categorically opposed.”

Yes, she replied.

Under friendlier questioning from Pisciotta, Kauanui said that she had seen no documents relating to the TMT application that addressed the concerns of the petitioners that Native Hawaiian burials might be disturbed.

Pisciotta then asked whether state laws protected cultural practices of Native Hawaiians. “No,” Kauanui responded.

“When the Department of Land and Natural Resources approved this plan [for the TMT], do you believe that was again state power?” Pisciotta asked.

“Yes,” Kauanui said. “That was state abuse of power.”

Handlin then followed up by asking Kauanui if she was claiming that the site proposed for the TMT was “a sacred burial ground.” (Archaeological surveys found no burials anywhere near the proposed TMT site.)

“Any actual telescope on Mauna Kea affects burials there,” she replied, “whether directly on top of burials or not.”

Was she aware of any burials on the five acres proposed for the observatory? Handlin asked.

Kauanui then sought to clarify her response. The laws against desecration, she said, were not tied to burials alone. “They’re also against temples of worship,” she added.

In addition to the testimony of Liu and Kauanui, several of the petitioners also gave statements about the way in which they felt construction of the TMT would have an impact on their cultural practices.

Arguing the contrary position were witnesses for the university. TMT project manager Gary Sanders outlined the ways in which the corporation would benefit the community. There are the obvious economic benefits to the community in the construction and operation of the telescope; the construction phase will require employment of around 300 workers, while 140 or so will be hired for its operation. Then there is the establishment of The Hawai`i Island New Knowledge (THINK) Fund, to which the TMT Corporation will, as soon as telescope construction begins, give $1 million a year for scholarships and programs to advance scientific, technological, engineering, and math curriculums at all educational levels. Also, the TMT has committed to partnering with the county, the university, and the state Department of Education to train local residents for jobs at the telescope.

Flora

The testimony of Clifford Smith, emeritus professor of botany at the University of Hawai`i and author of, in his words, the “rather stodgy tome,” The Lichens of Great Britain and Ireland, focused on the flora of the summit area.

“The lichen flora is the richest element of the summit flora,” he said, although the number of lichen species and total biomass is low. He characterized the lichen flora as “stable and mature,” with no indication of pollution or disturbance.

Few of the lichens grow on the surface, causing the summit to appear to be barren land – a statement that the petitioners jumped on.

Kalani Flores was the first to do so in his cross examination. “You state in your written testimony … the summit area is barren land. Are you referring there’s no flora at all?”

“Barren land is where you cannot see vegetation,” Smith responded. “You go up, and you cannot see vegetation.”

“So that is a misstatement?” Flores asked.

Smith replied with an emphatic “No.”

“There’s vegetation there,” he continued, “but at a frequency of point one percent – short ferns and mosses. You stand on the mountaintop and you cannot see it.”

Flores then inquired about the species that were collected whose identity had not yet been determined by Smith. “There’s a possibility some of these species who have not been identified could be in danger?” Flores inquired.

“I would doubt it, quite frankly,” Smith replied. “Most of these species are very widely distributed on top of the mountain… very widely distributed, down to 10,000 feet.”

Flores then honed in on one species of concern, the Douglas bladderwort, a fern. Smith said that it was a species of concern most probably because it had not been sufficiently collected. “Because it’s a species of concern,” he added, “nobody’s collecting it anymore… It sort of freezes things.”

When Ching cross examined Smith, he, too, questioned him on the use of the word “barren” to describe the landscape. “Would you agree that the [word] ‘barren’ here is a relative adjective?” Ching asked.

“No, sir, not at all,” Smith responded. “Barren means that it is without vegetation – that you cannot see the vegetation. It is barren.”

Ching: “But I just heard you testify to all these lichens that you found there.”

Smith: “Sure, they’re very small, most are hidden in cracks and crevices, but when you stand up and look out over the landscape, it is barren, empty, devoid of vegetation.”

Ching and Ward questioned Smith about the prospect that non-native plants could be transported to the summit during construction and operation of the telescope, noting that the pest species fireweed has already been spotted near the summit.

Smith said he had recommended to the Office of Mauna Kea Management that it eradicate fireweed by pulling and bagging it. “In fact, one of the rangers already does that,” he noted. Beyond that, he said, “there are already pretty well established hygiene rules for both people and vehicles for moving from areas where there are known threats to areas where they are not found. I’m sure they’re going to be implemented, even before this program comes into existence.”

When Lui-Kwan asked that Smith be qualified as an expert in botany, Paul Neves objected. “Who is not an expert in here?” he said. “I’m a cultural practitioner, I’m an expert. We have a different standard.”

Aoki, the hearing officer, ruled that Smith was qualified as an expert botanist.

Fauna

At the time the contested case hearing began and until well after the last of the closing arguments was heard, the wekiu bug was a candidate endangered species, with the U.S. Fish and Wildlife Service considering whether it should be formally listed or not.

Jesse Eiben, who has studied the wekiu bug since 2005 and wrote his Ph.D. dissertation on it, was a witness for the university on the subject.

The area chosen for the TMT site, he stated in his testimony, “is largely comprised of habitat not inhabitated” by the wekiu bug, which prefers “small, loosely packed rocks.” Further, he said, it was “highly unlikely” that construction in the designated site would have an impact on the overall population of the insect.

On October 26, the Fish and Wildlife Service announced in the Federal Register that it had removed the wekiu bug from the list of candidate endangered species. Five days later, the university’s attorneys wrote to Aoki, asking that he take “official notice” of the bug’s new status. The letter noted that the petitioners had, in their opening brief, argued that the TMT project would have “a substantial and adverse impact” on the wekiu bug. Further, they stated, the bug was “the cornerstone of petitioner Deborah Ward’s written direct testimony, which devoted fully sixteen of its twenty-one pages to a ‘case study’ of the wekiu bug and how, in Ms. Ward’s view, the TMT project will adversely affect this species.”

That elicited a strong response from the petitioners. On November 7, they informed Aoki that they did not object to the Federal Register notice concerning the wekiu bug being entered into the contested case record, so long as a statement by Ward disputing the FWS decision was included as well.

In her statement, Ward referred to several documents, including the final EIS for the TMT and the Conservation District application, which referred to potential loss of wekiu bug habitat in construction of the road and in traffic over the unpaved access way. She also noted that results of the most recent two years of wekiu bug surveys have not been made available to the public. Ward quoted an email from Eiben, who said that he disagreed with the statement in the Federal Register that the bug’s population was stable. Although there was no evidence to suggest the population was in decline, he added, “that still does not mean the population is stable.”

Rather than have a hearing on whether to admit Ward’s statements as part of the record, the university attorneys instead withdrew their request that Aoki take official notice of the FWS decision.

But the bell had been rung, and there was no undoing that. On November 16, Aoki issued a minute order stating that he had granted the applicant’s request to take official notice of the decision and was denying the petitioners’ request to augment the record with Ward’s statement.

Subdivision

A point that Marti Townsend, an attorney and program director for KAHEA, attempted to make several times in her cross examination of the university’s witnesses, was that the TMT project would entail subdivision of the area leased to the university, and would thus violate the DLNR’s rules disallowing subdivision in the Conservation District whenever it would facilitate development.

In their proposed findings of fact, the petitioners argued that the very designation by the university of an “astronomy precinct” of 525 acres out of the 11,288-acre leased parcel constituted an impermissible subdivision, while issuing a permit for the TMT project “would further the improper subdivision.”

The university argued that no such subdivision has occurred or will. The petitioners, the university states in its proposed findings of fact, had contended that subleases to other observatories involved such subdivisions, since, among other things, they contain “metes and bounds descriptions.” However, the university stated, the sublease documents submitted as exhibits to demonstrate this contained no such descriptions.

Patricia Tummons

Volume 22, Number 7 — January 2012

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