Hawai‘i Supreme Court Upholds Permit to Allow Construction of TMT

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In a long-awaited decision issued on October 30, the Hawai‘i Supreme Court determined that the state Board of Land and Natural Resources did not err when it awarded a Conservation District Use Permit (CDUP) for construction of the Thirty Meter Telescope (TMT) near the summit of Mauna Kea.

The opinion was not unanimous. The majority decision was signed by Chief Justice Mark E. Recktenwald, Associate Justice Sabrina S. McKenna, and 1st Circuit Judge Jeannette H. Castagnetti, filling in for Associate Justice Paula A. Nakayama, who recused herself. Associate Justice Richard W. Pollock concurred in part and concurred in the judgment of the majority. Associate Justice Michael D. Wilson joined with part of Pollock’s opinion, but dissented from the conclusion of the majority.

Before the high court were three consolidated appeals of the decision made more than a year earlier by the Land Board. On September 27, 2017, it had issued its Findings of Fact, Conclusions of Law, and Decision and Order (D&O for short) that contained 1,070 findings of fact and 512 conclusions of law. Altogether, the document ran to 271 pages.

That document itself was the result of a contested case hearing that ran for more than 40 days in 2016 and 2017, with retired judge Riki May Amano presiding over the quasi-judicial proceeding. Amano drafted her own recommended D&O and presented it to the Land Board. In crafting the final decision, the board accepted many of Amano’s proposed findings, but rejected some as well.

Following the Land Board’s decision to award the permit to the TMT, the 17 parties to the contested case who opposed the permit filed their appeals to the high court. (See separate box for a list of the parties who appealed the case.)

It took just over a year for the court to reach its decision. But once it was released, there was little suspense in the outcome. By the third paragraph, the majority justices disclosed the outcome of their deliberations:

“In this opinion, we address whether the BLNR properly applied the law in analyzing whether a permit should be issued for the TMT. Upon careful consideration of the written submissions, the applicable law, and the oral arguments, and for the reasons explained below, we now affirm the BLNR’s decision authorizing issuance of a Conservation District Use Permit (CDUP) for the Thirty Meter Telescope (TMT).”

The majority justices helpfully listed the “points of error” that were raised in the appeals, categorizing them in four general topics: disqualification issues; Native Hawaiian rights; public trust and land use; and other “procedural” issues. The last of these concerns technical arguments about the conduct of the contested case hearing, for the most part. Nearly every point raised by the opponents in this category was quickly dispensed with by the justices.

Disqualification Issues

The TMT opponents challenged the selection of Amano as the hearing officer, arguing that her membership in the ‘Imiloa Astronomy Center compromised her ability to be impartial. The ‘Imiloa is administratively attached to the University of Hawai‘i at Hilo, which was the applicant for the CDUP. Opponents noted that the TMT organization had made a substantial donation to the ‘Imiloa as well.

In defending Amano’s selection, the BLNR compared membership in the ‘Imiloa to museum membership. The justices agreed.

Opponents also argued that Amano’s behavior in the contested case amounted to prejudice against them and was improper and that she had connections with a deputy attorney general (Amano attended law school with his wife).

The justices rejected the arguments.

“Membership [in ‘Imiloa] alone does not lead to a conclusion that a member supports a mission to build the TMT, even assuming that this is ‘Imiloa’s mission,” they found.

TMT opponents had asked the BLNR to disqualify the deputy attorneys general who advised the board in the first contested case and appeal from having any advisory role in the more recent contested case. Again, the justices rejected the argu- ment. The deputy attorneys general “have always been required to assist the BLNR in a manner to enable the board to perform its duties faithfully,” they wrote. “Their duty never changed, and they have consistently represented the interests of the BLNR.”

Finally, as to the matter of disqualifications, the justices considered the opponents’ arguments that two Land Board members – Chris Yuen and Samuel Gon – should not have been allowed to vote on the contested case.

In the case of Yuen, they pointed to a 1998 interview he gave to Environment Hawai‘i, in which he discussed telescopes atop Mauna Kea, among many other things. The opponents focused in on his statement that “I don’t see what difference it would make to have a few more telescopes up there as long as you site them properly.”

The justices noted, however, that Yuen’s comments “also contained criticism of telescope projects” and that he “also stated that any future telescope project would need, at minimum, to be ‘site[d] … properly,’ meet the demands of good stewardship, and leave intact habitat and archaeological and cultural sites.”

“Thus,” they found, “Yuen’s comments, made in 1998, did not indicate he would approve all future telescope applications” and there was nothing to “reasonably cast suspicion on Yuen’s impartiality.” (The full interview appears in the July 1998 edition of Environment Hawai‘i.)

As to Yuen’s participation on the panel that selected Amano to be hearing officer, the justices found there to be “no due process violation.”

Gon, the opponents argued, should have been disqualified because he had voted to approve the permit for the TMT the first time that it came before the Land Board. The justices dismissed this argument, noting that Mauna Kea I remanded the case “for a second contested case hearing ‘before the board or a new hearing officer,’ not a new board. Moreover, there is no legal authority requiring a board member to be disqualified because he had approved a decision that is later vacated and remanded. If such authority existed, no vacated decision could ever be remanded to the same board or lower court judge.”

Native Hawaiian Rights

One of the most seminal decisions in the evolving history of Native Hawaiian rights is Ka Pa‘akai o Ka ‘Aina, which requires agencies to identify cultural resources and determine the extent to which Native Hawaiian rights are exercised in a given area, determine how those rights will be affected by a given action, and describe “the feasible action, if any,” that the agency will take to protect such rights if they are found to exist.

“The BLNR found no evidence … of Native Hawaiian cultural resources, including traditional and customary practices, within the TMT observatory site area and the access way,” the justices noted.

In 2015, two ahu were erected by protesters on the unpaved road leading to the TMT site, but the “BLNR concluded that the two ahu … did not constitute a traditional and customary right or practice.” A third ahu, consisting of a single upright stone and several support stones, was also of recent vintage. The justices agreed that the structures “are not protected as Native Hawaiian traditional or customary rights.”

As for the Native Hawaiian practices at the summit, the BLNR determined in its findings of fact that cultural and/or spiritual practices had co-existed with astronomy facilities and that those practices would not be affected by the TMT, to be built 600 feet below the summit ridge.

Another aspect of Ka Pa‘akai prevents agencies from improperly delegating their duties to protect Native Hawaiian rights and practices to others. TMT opponents argued that two of the conditions approved in the BLNR’s decision did just this by requiring the university to consult with Kahu Ku Mauna, a group of Hawaiians that advises the university’s Office of Mauna Kea Management. The justices determined, however, that while these conditions “may appear to be delegations, they are not; they are outside and in addition to Ka Pa‘akai requirements, and were imposed to ensure that Native Hawaiian practices in the Mauna Kea area will continue to be protected.”

The Kihoi appellants argued that the TMT would impair their constitutional rights to practice their religion, amount to a violation of the Religious Freedom Restoration Act, and the Religious Land Use and Institutionalized Persons Act of 2000. None of those arguments were compelling to the justices, who dismissed them as meritless.

The Temple of Lono argued that Amano erred when it refused to disqualify the University of Hawai‘i at Hilo as the applicant, inasmuch as the university had disrespected it with offensive statements that showed a hostility to what it claimed was traditional Hawaiian faith.

“The Temple’s opening brief does not quote the allegedly offending language,” the justices wrote, but they seem to have found it in one of the university’s briefs.

In that brief, the university appears to accuse the Temple of fundamentalism, going on to note that the “problem with fundamentalism in religion – any religion – is its intolerance and inability to compromise… The Temple wants a religious servitude over all of Mauna Kea, for the purpose of advancing its own religious agenda.”

While the university argued that Mauna Kea could accommodate both the TMT and traditional Native Hawaiian Religion, “the Temple rejects that sharing of Mauna Kea,” the justices noted.

Neither the hearing officer nor the BLNR were required to disqualify the university as applicant, they went on to write. Still, they issued a mild reproof: “the tenor of the language in [UHH’s] memorandum was unnecessary.”

One of the arguments raised frequently, and vainly, in the contested case had to do with the legitimacy of the current government of Hawai‘i. On appeal, Harry Fergerstrom challenged the dismissal of his efforts to raise this point.

He had no better luck with the Supreme Court: “The BLNR is bound by the United States Supreme Court’s and this court’s precedents regarding the legal status of the state of Hawai‘i,” the justices wrote. “Therefore, the hearing officer did not err by excluding the proposed evidence.”

Public Trust and Land Issues

Sixteen pages of the majority opinion are given over to discussion of public trust and land issues. First the justices considered the Conservation District permit and BLNR decision in light of Article XI, Section 1 of the Hawai‘i Constitution and public trust principles. Next they held them up against the BLNR’s own administrative rules governing permitted uses in the Conservation District.

Near the outset of the discussion, the justices make a definitive statement: “The plain language of Article XI, Section 1 provides that all public natural resources, including land, are held in trust by the state for the benefit of the people. We therefore now hold that conservation district lands owned by the state, such as the lands in the summit area of Mauna Kea, are public resources held in trust for the benefit of the people pursuant to Article XI, Section 1.”

The same constitutional provision also “requires a balancing between the requirements of conservation and protection of public natural resources, on the one hand, and the development and utilization of these resources on the other in a manner consistent with their conservation.”

The Land Board rejected the opponents’ argument that the use of the land by the TMT, a private organization, violated the presumption that favors public use, access, and enjoyment – established in the Supreme Court’s Waiahole I decision in 1994.

The Supreme Court agreed with the Land Board. “The TMT project does not involve the irrevocable transfer of public land to a private party,” it found, going on to note that the TMT’s use of the land is for a limited term. Other conditions imposed by the board require it to under- take improvements to natural resources, including funding of the “re-naturalization” of the closed road on Pu‘u Poli‘ahu, among other things. Off-site benefits associated with the project, the justices noted, include a “substantial community benefits package” and a “workforce pipeline program.”

On the matter of compliance with the administrative rules setting forth eight criteria that need to be met for Conservation District Use Permits, the justices note that the Land Board “made extensive FOFs [findings of fact] and COLs [conclusions of law]” regarding each criterion.

Opponents’ arguments focused on alleged violations of three of those: the fourth condition, which prohibits a proposed use if it will cause “substantial adverse impact to existing natural resources;” the fifth condition, which addresses the proposed use’s compatibility with its surroundings; and the sixth condition, requiring that the “existing physical and environmental aspects of the land … will be preserved or improved upon.”

The fourth condition, the Land Board found, was addressed inasmuch as the TMT would be improving much of the area that, over the years, had been damaged by development and the university was agreeing to remove two additional telescopes and not seek permits for other telescopes to replace any of the total of five telescopes that are to be taken out of service.

In light of these findings, the justices wrote, “the BLNR did not clearly err in concluding that the TMT will not have a substantial adverse impact to natural resources within the surrounding area…”

Regarding the fifth condition – compatibility with surroundings – the BLNR found that the TMT would be sited half a mile from the summit area and near 11 other astronomy facilities. “Therefore, on these facts,” the justices wrote, “we cannot say that the BLNR erred” on this point.

The sixth condition, requiring the proposed project not degrade the natural beauty or open space of a site, was deemed to have been met by the board inasmuch as the university “formally committed that this is the last new area of Mauna Kea where a telescope project would be sought.” Here again the justices determined that the Land Board’s findings “are not clearly erroneous.”

Pollock Would Expand Public Trust Protections

Associate Justice Richard W. Pollock agreed with the three Hawai‘i Supreme Court justices who authored the opinion approving the Board of Land and Natural Resources’ award of a Conservation District Use Permit for building the Thirty Meter Telescope.

Agreed – to a point.

In a separate opinion, concurring in part but also concurring in the judgment, Pollock described his views on where the majority justices failed in their analysis of the principles at issue in the litigation over the CDUP.

The focus of Pollock’s attention in his 37-page opinion is the reach of the public trust doctrine, especially its applicability to land in the Conservation District. In Pollock’s opinion, the majority justices did not go far enough in describing the public-trust protections for such land, even though they have fully framed those same safeguards as they applied to water. The result, as Pollock expresses it, is “different measures of protection” for land as opposed to water.

“But,” he continues, “neither the text nor the history of Article XI, Section 1 [of the Hawai‘i Constitution] provides for differing levels of protection for individual natural resources … and this court should not establish artificial distinctions without a compelling basis for doing so.”

The high court was in effect refusing “to demarcate the outer limits of the public trust doctrine” and was, instead, “applying the fundamental principles … through case-by-case adjudication.” When water resources were concerned, he argues, the court did rise to the occasion in a case it decided four years ago: “Our evolving caselaw applying constitutional public trust principles to water usage was collected and summarized by this court in Kaua‘i Springs… [W]e distilled from our precedents a framework of inter-related principles applicable to agencies and applicants in discharging their respective obligations.”

To show just what he means, Pollock cites a finding of the hearing officer, Riki May Amano. Amano, Pollock writes, “stated that ‘the scope of the public trust doctrine has traditionally been limited to water resources, and the reliable, credible and substantial evidence establishes that the TMT project will not restrict or otherwise impair any water resources.’” On that basis, he says, “the hearing examiner concluded that ‘the public trust doctrine does not apply to consideration of the TMT project.’”

Amano’s conclusion runs up against an earlier Supreme Court decision, Zimring, in which the court determined that public trust principles apply to public land, Pollock contends.

In any event, the Land Board rejected this conclusion of Amano’s, making it unnecessary for the court to consider it.

However, Pollock goes on to say the Land Board itself “made a number of conclusions that are not wholly consistent with established law,” including its conflation of language relating to the ceded land trust, the University of Hawai‘i trust, and the public trust relating to manage- ment of natural resources. “[I]n some instances,” Pollock opines, “the trusts may share assets in common, as in the present case … But each of the three trusts is distinct… Accordingly, when a contemplated action may affect property in which multiple trusts hold common title, the state is obligated to consider the impact of its actions on the separate purposes of each trust that is implicated.”

Basically, by holding up the proposed use of the land against the language of its administrative rules rather than against that of the public trust doctrine as expressed in the state Constitution, the Land Board fell short of undertaking the appropriate analysis, Pollock seems to argue.

Pollock does not disagree with the final decision of the majority justices. But, as a consequence of what he sees as their failure to provide a framework for determining compliance with public trust protections, he describes as “unclear” the basis for the finding that the BLNR fulfilled its constitutional public trust obligations.

In addition, he seems to have a problem with the manner in which the Land Board – and his colleagues – pointed to the TMT’s promise of off-site benefits in justifying the decision that its construction would not violate the constitutional protection of public trust resources or Conservation District rules.

“In addressing the presumption in favor of public use, access, enjoyment, and resource protection,” he writes, referring to the presumption expressed in Article XI, Section 1, “the majority cites the vari- ous grants, scholarships, and career train- ing the operators of the TMT will offer the community… as well as the sublease rent that will be paid to the university of Hawai‘i. … Although donations or payments to the state and community that are unrelated to the actual use of a resource may be somewhat relevant to whether the proposed use of the conservation land is being put to a reasonable and a beneficial use, they have no bearing on whether the proposed use is itself public in nature. Were this not the case, virtually any use of a natural resource could be converted to a public use … simply by coupling it with sufficient auxiliary payments to the state or community.”

Pollock nonetheless concurred with the majority opinion. “Although it misconstrued its duties under Article XI, Section 1, the findings and conclusions that the BLNR made regarding the public trust and other matters are sufficient to evaluate whether the board satisfied the obligations outlined in the Kaua‘i Springs framework,” Pollock writes. “BLNR’s factual findings on these issues appear to be supported by substantial evidence and thus are not clearly erroneous and an appellate court is therefore obliged to accept them.”

Justice Wilson’s Dissent: ‘The Degradation Principle’

In his 36-page dissent, Justice Michael Wilson posits what he calls “the degradation principle” and argues that this is what the Land Board employed when approving the Conservation District Use Permit for the Thirty Meter Telescope. The moniker is a play on the principle of non-degradation that has been formulated to defend natural resources against further harm when they have already suffered substantial degradation.

“The degradation principle portends environmental and cultural damage to cherished natural and cultural resources,” Wilson writes in his dissent, filed 10 days after the majority justices published their opinions.

(As an aside, the opponents had 10 days in which to file a request for the court to reconsider its decision. Because Wilson had announced his dissent but had not published it, the opponents asked the court to extend the period in which they could file their request for reconsideration. The Supreme Court granted the request, extending the period for filing by another 10 days. The requests were filed November 19.)

In a footnote, Wilson calls out what he sees as a contradiction in the majority opinion: “The majority states that the ‘BLNR does not have license to endlessly approve permits for construction in conservation districts, based purely on the rationale that every additional facility is purely incremental. It cannot be the case that the presence of one facility necessarily renders all additional facilities as an incremental addition.’” But despite this, Wilson continues, “the increment with the great impact of all telescopes, TMT, is deemed not to cause a substantial adverse impact because prior increments of telescope construction cumulatively caused a substantial adverse impact.”

Wilson also says that the majority decision violates the principle of “intergenerational equity.”

“The degradation principle removes the need to consider the impacts of TMT on the existing resource. … In this way the BLNR ignores the rights of future generations to the protections specifically afforded them” by the Land Board’s administrative rules, he states.

— Patricia Tummons


The Appellants

The Supreme Court consolidated three separate appeals made by the parties who were admitted as petitioners to the Thirty Meter Telescope contested case hearing. Here is the breakdown:

Appellants Mauna Kea Anaina Hou, Kealoha Pisciotta, Clarence Kukauakahi Ching, the Flores-Case Ohana, Deborah Ward, Paul Neves, and KAHEA: The Hawaiian Environmental Alliance. They were represented before the high court by Richard Naiwieha Wurdeman. (Wurdeman had also represented them in motions before the contested case began, but dropped out before it started.) These were the same parties who appealed the BLNR’s decision to grant the CDUP in April 2013. That appeal resulted in the Supreme Court’s first decision on this subject, Mauna Kea I, handed up on December 2, 2015. In that decision, the court remanded the matter to the Land Board, determining that it had erred by voting on the permit before holding a contested case hearing.

Appellants Temple of Lono, Mehana Kihoi, Joseph Kuali‘i Camara, Leina‘ala Slightholm, Kalikolehua Kanaele, Tiffnie Kakalia, Brannon Kamahana Kealoha, Cindy Freitas, and William Freitas were represented by Gary Z. Zamber.

Intervenor-Appellant Harry Fergerstrom represented himself.

Dwight J. Vicente, one of the parties to the contested case, also filed an appeal, but was dismissed from the case owing to his failure to file an opening brief.

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