I admit it. I grew up reading “vintage” science fiction, including Ray Bradbury’s lyric stories that captured the wonder of the night sky and the curiosity inspired by the enormity of the universe and the meaning of our tiny place in it, along with the works of writers like Arthur C. Clarke and Isaac Asimov, who both wrote fiction grounded in a background of hard science.

So I’ve been excited, from a distance, at the expansion of astronomy-related research and education here in Hawaii.  As a result, the emergence of the broad-based protest movement against the latest and largest of the observatories on Mauna Kea, the Thirty Meter Telescope, has been so painful for me to watch.

I’m guessing there are many people who, like me, see this as an unfortunate clash between two positive sets of values, the urge to preserve and protect our natural and cultural resources, and the urge to understand and investigate the nature of the universe around us.  I’m not persuaded by appeals to the “sacred,” at least I don’t think they trump all the other considerations involved in this complex situation.

The resolution to this clash of values, and the ultimate fate of the TMT, may be decided in the short term by the outcome of the pending lawsuit brought by some project opponents, which is now on appeal to the state’s Intermediate Court of Appeals, and a somewhat parallel case before the Hawaii Supreme Court. And so I decided to take a look at issues being raised in the court cases.

Thirty Meter Telescope Mauna Kea

An artist’s view of the Thirty Meter Telescope with laser at night.

Courtesy TMT International Observatory

The TMT Lawsuit

Mauna Kea Anaina Hou, an unincorporated group of Big Island residents who have engaged in traditional cultural and religious practices on the mountain and have long advocated for its protection, is the lead plaintiff, joined by KAHEA: The Hawaiian Environmental Alliance, a nonprofit group which has pressed for protection of Mauna Kea since 2001, and several  individuals.

Named as defendants are the Board of Land and Natural Resources, the Department of Land and Natural Resources, the land board chair, who also serves as department director, along with the State of Hawaii, the University of Hawaii at Hilo.

Here’s the background, in brief. In 2011, the land board voted to give the TMT a conditional approval, then initiated a contested case hearing process in which supporters and opponents mustered their facts and presented the testimony of expert witnesses.  The record compiled in the contested case is huge, spanning thousands of pages of arguments, testimony, and exhibits.

Two years later, when the board ruled in favor of the TMT and let the project proceed, opponents went to court, represented by Richard Naiwieha Wurdeman. They lost the first round in May 2014, when Third Circuit Court Judge Greg Nakamura sided with the state and the university. Opponents of the TMT have appealed that decision to the Intermediate Court of Appeals.

So what’s the case TMT opponents have been making? Like most legal cases, there’s a lot of legal minutiae that can confuse lawyers and non-lawyers alike. But here are some of the key points the defenders of Mauna Kea have argued in their legal appeal.

The Legal Arguments

First, the plaintiffs argue that the land board violated their due process rights by not allowing their side to be heard at a meaningful time and in a meaningful manner. The problem, they argue, is that the board first approved a conservation district use permit allowing the telescope to be built, but then added a condition that actual construction could not begin until the contested case process was wrapped up and their challenge either sustained or dismissed.

As a result, they argue, the legal matters had already been determined before the contested case hearing, when the initial permit was approved, and “the subsequent decision and order … had been predetermined and preordained.”

To put it simply, they say, the land board put the cart before the horse. And as support they cite a 2013 Hawaii Supreme Court opinion in a case challenging the Advanced Technology Solar Telescope, now known as the Daniel K. Inouye Solar Telescope, already under construction on Haleakala. In that case, as in the Mauna Kea case, the land board approved a permit and then proceeded with a contested case hearing. At least two justices concluded that this was procedurally improper and a violation of due process, and the TMT opponents argue that the full opinion of the court should be read the same way.

Second, plaintiffs argue the land board failed to meet all eight criteria required to approve a project like this within a conservation district. Much of the argument revolves around how to determine whether the TMT would “cause substantial, significant, and adverse impacts on existing natural resources.”

To put it simply, they say, the land board put the cart before the horse.

Both the land board and the circuit court concluded that previous development in the summit area of Mauna Kea, which includes 12 observatories and support facilities, had already had substantial negative environmental impacts. In other words, the damage has already been done, and the TMT, even though substantial, would only add incrementally to existing impacts.

That would be akin to “saying its already a mess up there, we’ll make it a little bit more of a mess, and that’s okay,” according to the plaintiffs, “and that’s not what conservation and protection means.”

It’s illogical, they argue, because it would in essence “allow unlimited development of the Mauna Kea summit as long as development proceeded incrementally.”

Third is the question of whether the land board was correct when it ruled that measures to mitigate the impacts of the Thirty Meter Telescope reduced the impacts to the point where they would not be considered significant.

‘Bulldoze your own temples’. sign near demonstrators at the Mauna Kea visitors center.  9 april 2015. photograph Cory Lum/Civil Beat

A sign on Mauna Kea protesting the Thirty Meter Telescope

Cory Lum/Civil Beat

One of the most important mitigating measures approved by the land board was a community benefits package that include the funding of education programs, scholarships, and work force training programs costing a million dollars a year over the planned life of the TMT, with the overall benefits presumably balancing off negative impacts of the project.

Telescope opponents say the economic benefits simply do not address the environmental and cultural impacts, which must be considered first because of the conservation zoning of the summit area.

Further, they argue that the land board’s rules do not authorize a balancing of environmental damage with economic benefits. In this case, they say,  money can’t be allowed to do the talking.

And other mitigating measures, including the design, site selection, and color of the telescope building simply did not suffice to prevent signficant impacts to culturally significant and sensitive viewplanes, the plaintiffs have argued.

“BLNR’s finding that the Petitioners’ (the defenders of Mauna Kea) failed to identify how an 18-story building could ‘interfere’ with a culturally significant viewplane alignment practices stretches credulity,” they argued.

Further, opponents say, the fundamental purpose of a conservation district is to “conserve, protect, and preserve” the state’s important natural resources. At some point, development becomes incompatible with conservation, they argue.

Of course, these arguments are hotly contested by the state and the university.

Attorneys for the defendants call the “due process” claims a “red herring,” and say the Mauna Kea case can be easily distinguished from the Haleakala case considered by the Supreme Court. The difference, they say, is that the land board did not allow any construction to begin on the TMT until the contested case hearing was completed and a decision made.

They argue that the environmental and social impacts will be minimal becuase the TMT site is “away from known historic and traditional cultural properties and cultural resources,” will not be visible from the summit, located on Pu‘u Wekiu, and the impact on other viewplanes will be minimal.

According to the opening brief filed on behalf of the land board and DLNR: “The TMT Observatory will not be visible from the summit of Mauna Kea and Lake Waiau, will not block views of Haleakala, the setting sun, the shadow of Mauna Kea, or the Southern Cross constellation from the northern ridge of Kukahauula. The TMT Observatory will be outside the viewplane of the setting sun from the summit of Pu‘u Poliahu, and although the TMT Observatory will be visible when viewing Haleakala from Pu‘u Poliahu, this view already includes other astronomy facilities that are visible.”

The land board attorneys also discounted testimony about the impact of TMT on traditional cultural and religious practices because while several witnesses testified about their own cultural practices on Mauna Kea, their evidence “did not include testimony or evidence to support a finding that these practices are connected to a firmly rooted traditional or customary native Hawaiian practice dating back to 1892.”

Haleakala "Science City"

Haleakala’s Science City where the proposed Advanced Technology Solar Telescope is slated to be built.

Flickr.com

Haleakala Case May Lead the Way

Some of these broad legal issues may be resolved by the Hawaii Supreme Court in the case involving the Haleakala solar telescope. Oral arguments in that case were were held before the Supreme Court on April 2, and a recording of the session is available online at the Judiciary’s website. Many of the same issues that are central to Mauna Kea were debated before the court, including the key questions of how cumulative impacts of development within a conservation district should be addressed, and whether economic benefits can be considered to mitigate damage to environmental and cultural resources within a conservation district.

The plaintiffs argue that Hawaii’s constitutional provision relating to conservation requires the court to look more skeptically at proposed development in conservation districts.

Article XI, Section 1 of the Hawaii State Constitution provides: “For the benefit of present and future generations, the State and its political subdivisions shall conserve and protect Hawaii’s natural beauty and all natural resources, including land, water, air, minerals and energy sources, and shall promote the development and utilization of these resources in a manner consistent with their conservation and in furtherance of the self-sufficiency of the State.”

If the court agrees, it could lead to stricter controls on development in the conservation districts on both Mauna Kea and Haleakala.

On the issue of cumulative impacts, attorney David Frankel challenged the court.

“Given all these (cumulative) impacts, how can the Board of Land and Natural Resources fulfill the purpose of the conservation district, which is to protect these kinds of natural and cultural resources? Given the fact that Science City has reached such a concentration, the idea that it’s in the conservation district is laughable. We’ve created  a city in a conservation district, and that makes no sense.”

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