“This project is not simply removing foundations. It’s jackhammering, pouring concrete, and making a lot of noise,” Native Hawaiian Legal Corporation (NHLC) attorney David Kimo Frankel told the state Board of Land and Natural Resources at an April 27 hearing.
Frankel wanted to dispel any notion that the clearing and excavation work the University of Hawai`i had proposed to start this month on Haleakala was minimal. Mostly, he wanted to stop it from happening.
And he has succeeded, for now.
In a May 3 letter, Lisa Munger, an attorney for the university, informed the NHLC and state deputy attorney general Julie China that faced with new limitations on construction set by the Land Board and a motion in 1st Circuit Court by NHLC’s client, Kilakila `O Haleakala, for a temporary injunction, the university has chosen not to perform any construction activities at this time.
In December 2010, the university received Land Board approval for a Conservation District Use Permit (CDUP) for the $300 million Advanced Solar Technology Telescope (ATST) to be built on Haleakala. Kilakila `O Haleakala, a native Hawaiian group that seeks to preserve the mountain from desecration, initiated a contested case, which has become protracted and has yet to be resolved. (See our April 2012 cover story and May 2012 BOARD TALK column for more information on this.)
But with its permit in hand, the university announced in March that beginning May 14 and continuing over the following eight weeks, it would begin construction in and around the ATST site.
The university proposed doing two main things: remove old facilities and excavate a utility corridor between two existing ones so power lines can be laid underground.
After hearing arguments for and against the proposal, the Land Board issued an order — Minute Order No. 19 — on May 2 amending the CDUP to limit construction during the contested case to the clearing activities only, which are required by the permit as mitigation.
The decision departed from the board’s initial recommendation (Minute Order No. 17) to allow construction to proceed as proposed and amend the CDUP only to give the DLNR and all parties to the contested case 30 days advance notice of any further construction activities occurring before the contested case proceeding ends. The recommendation also proposed amending the permit to give the board authority to impose conditions on construction.
During the April 27 hearing on Minute Order No. 17, Munger said the university did not mind the board’s inclination.
“We’d like to proceed with the indicated site work that addresses the mitigation required in the permit and does not involve the construction of the ATST itself,” she said.
She pointed out instances in 2008, 2010 and during the contested case hearing where Kilakila `O Haleakala had stated that an old site known as Reber Circle and other unused facilities should be removed.
“I cannot see any reason not to do this work,” she said of the clearing.
With regard to the university’s plans to excavate a utility corridor to underground power lines, that project also does not involve the ATST site, she argued.
“It’s between existing facilities,” she said, and assured the board that a cultural monitor would be onsite. “Undergrounding [power lines] does not affect the ATST,” she said.
However, when Big Island Land Board member Robert Pacheco asked whether the ATST, if built, would use the utility corridor, Munger said that it would.
Pacheco then asked whether a corridor would have been dug without the ATST. To this, Munger admitted that one had not been planned.
Frankel also pointed out that moving the utility corridor has nothing to do with mitigation. “This corridor is being built to serve the ATST project.”
Pacheco noted that the corridor would also serve an existing facility known as the Mees Observatory.
Whatever the use, a drawn-out construction period, which could impact the endangered Hawaiian petrel on the mountain, would violate the terms of the university’s incidental take permit for the project, Frankel argued.
The U.S. Fish and Wildlife Service had originally proposed a ban on construction during nesting months (April through July), but later agreed to allow construction to proceed without a break, since it would save a year of construction and reduce impacts overall, he said.
If the board approved Minute Order No. 17, the university would “do a little bit of construction, come back and give you notice. … start, stop, start, stop. That’s what the [incidental take] permit was trying to prevent,” he said.
“What the university is trying to do is establish its right,” Frankel said, finally. “They’ll start constructing, then argue in court the board can’t take [the CDUP] away” because it spent money.
Munger countered that the work wouldn’t occur anywhere near the petrel burrows, that putting power lines underground would benefit the birds, and that noise and cultural impacts have been or will be mitigated.
“Nobody is saying construction is going to take place a foot away from an ua`u burrow,” Frankel responded, adding that there is no evidence that the impact of the utility corridor construction is completely insignificant.
In its May 2 order, the Land Board specifically addressed Frankel’s argument that the university was trying to establish a right to keep its permit. The board stated that any construction during the contested case is done at the university’s “sole risk and discretion and … shall not be a basis for a later assertion of vested rights or exclusive privilege.”
Last month, before the April hearing, Kilakila `O Haleakala filed a motion for a temporary injunction in 1st Circuit Court to prevent the university from proceeding with construction. A hearing on the motion had been set for Tuesday, May 8.
Munger stated in her May 3 letter that the university intends to comply with the Land Board’s Minute Order No. 19.
“In addition, the University does not wish to incur the expense of a preliminary injunction hearing, including the expense of bringing witnesses from the mainland to testify.
“Accordingly, the University has decided not to perform any construction or removal at this time,” she wrote.
Given the university’s decision, Frankel says there is no need for a hearing on Kilakila’s motion.
“Kilakila `O Haleakalā got what it wanted and so its motion is withdrawn,” he wrote in an email to Environment Hawai`i.