The Office of Hawaiian Affairs is suing the state and the University of Hawaii over claims of “longstanding and well-documented mismanagement” of Mauna Kea.

OHA, which filed its lawsuit Tuesday, wants the 1st Circuit Court to order the state “to fulfill its trust obligations” relating to Mauna Kea and to terminate UH’s general lease for the mountain for breach of the lease’s terms.

“The state and UH have failed to properly malama Mauna Kea and have demonstrated their inability to ensure that the environmental and cultural significance of the mountain is recognized and protected,” OHA Trustee Dan Ahuna said at a press conference Wednesday at OHA’s Honolulu headquarters. “This is not about any one telescope. This lawsuit is about addressing the state’s failure to manage the entire mountain for nearly half a century.”

There are 13 observatories on the summit of Mauna Kea on Hawaii Island. Nearly 14,000 feet tall, the mountain is considered one of the premier astronomy sites in the world.

There are currently 13 observatories on the summit of Mauna Kea. The proposed Thirty Meter Telescope would make it 14, but legal challenges remain. ©Sin Ok

But it is also considered by many Native Hawaiians to be deeply sacred. Recent protests and legal battles over plans to build a giant new telescope have kept Mauna Kea in the headlines.

Gov. David Ige, who supports the proposed Thirty Meter Telescope, said Wednesday he had not had the opportunity to review the complaint and so could not yet comment.

Dan Dennison, senior communications manager for the state Department of Land and Natural Resources, said, “We are in the process of reviewing the complaint. DLNR remains committed to its stated mission of enhancing, protecting, conserving and managing Hawaii’s unique and limited natural, cultural and historic resources held in public trust … in partnership with others from the public and private sectors. We will comment further at an appropriate time.”

A spokesman for UH defended the university’s management of Mauna Kea.

“So much work has been done on the mountain, and there is so much to build on,” said Dan Meisenzahl. “The bottom line is that, to say Mauna Kea has been mismanaged is not only inaccurate but unfair. It’s unfair to UH and all the community members on Hawaii island who have participated in the process and served on boards and made difficult decisions over the past 20 years.”

A Lengthy Dispute

OHA’s interest in legal action over Mauna Kea is not new, nor unexpected. It has sought unsuccessfully to transfer management of the mountain from the state to OHA.

Over a year ago it accused the state, the Department of Land and Natural Resources (which leases the mountain) and UH of having “grossly mismanaged” Hawaii’s highest mountain.

In July, Ahuna wrote in a Honolulu Star-Advertiser guest column that UH had failed to address “longstanding mismanagement of the mauna and to offer proposals for alternative management structures.”

Ahuna wrote, “OHA is committed to ensuring that Mauna Kea is properly managed with appropriate protocols in place to protect this cultural treasure from further exploitation.”

OHA Trustee Dan Ahuna at a board meeting in February. He said the state and the University of Hawaii have failed to take care of Mauna Kea. Anthony Quintano/Civil Beat

UPDATE: The decision to sue was made unanimously in August by the OHA Board of Trustees. Trustees Rowena Akana, Peter Apo and John Waihee IV were absent for the executive session meeting, which was held with legal counsel Robert Klein.

OHA’s action Wednesday comes in the wake of retired judge Riki May Amano’s ruling in July that a construction permit should be granted for the Thirty Meter Telescope, known as the TMT.

The $1.4 billion project has been delayed since protracted protests on the mountain in 2015 disrupted work. That same year, heeding the concerns of many of its Native Hawaiian beneficiaries, OHA rescinded its support for the TMT but stopped short of declaring its opposition.

Following Amano’s ruling, in late September the state Board of Land and Natural Resources granted a construction permit for the TMT. Just last week, an attorney for opponents of the telescope appealed the case to the Hawaii Supreme Court.

‘Balance And Trust’

OHA, a semi-autonomous state government agency whose mission is to better the lives of the state’s indigenous people, receives funds from the use of Mauna Kea.

According to the agency, the $18.2 million state agencies transferred to OHA for the use of public land trust lands in fiscal year 2016, approximately $131,000 was transferred from the Office of Mauna Kea Management.

(Following state law, OHA then returned $3.1 million, the amount over the $15.1 million interim cap on OHA’s pro rata portion of the public land trust, to the ceded lands collection trust fund account.)

The Office of Maunakea Management is responsible for day-to-day management of the Mauna Kea Science Reserve, as detailed in a master plan adopted by the UH Board of Regents in 2000.

OMKM, as it is known, states on its website, “Our mission is to achieve harmony, balance and trust in the sustainable management and stewardship of Mauna Kea Science Reserve through community involvement and programs that protect, preserve and enhance the natural, cultural and recreational resources of Maunakea while providing a world-class center dedicated to education, research and astronomy.”

Ahuna, however, said Wednesday, “It’s time to abandon any hope that UH is capable or even willing to provide the level of aloha and attention to Mauna Kea that it deserves.”

In a press release, OHA pointed to four state audits that the agency said “documented and criticized the state and UH’s mismanagement of Mauna Kea. The initial audit from 1998 concluded that “little was done” to protect the natural resources on Mauna Kea since the first telescope was constructed in 1968.

OHA acknowledged that the three follow-up audits “revealed that while some progress had been made, more needed to be done.”

Among the “countless issues and failings” on the part of UH and the state are the following, according to OHA:

  • failure to budget and fund proper management of Mauna Kea;
  • failure to “prudently” negotiate sublease terms (e.g., by allowing 11 of 13 telescopes to not pay rent);
  • failure to “adequately implement” the 2009 Comprehensive Management Plan, with 32 of the 54 management actions that specifically affect Native Hawaiians “remaining incomplete”;
  • failure to create an environment “respectful” of Mauna Kea’s cultural landscape (e.g., by not adequately protecting Native Hawaiian traditional and customary rights and practices on Mauna Kea);
  • failure to manage access to Mauna Kea and activities on Mauna Kea, “which has led to vehicular accidents and personal injuries and deaths, and hazardous material spills”; and
  • failure to manage observatory development and decommissioning.

Meisenzahl said he could not respond to the lawsuit “in general,” but he encouraged people to “take a look at the record themselves.”

He cited the same four audits as evidence of the “tremendous amount of progress that the university has made on the mountain” over the past 50 years. He also characterized the first audit of Mauna Kea as “a wakeup call that led to the creation of a new approach to stewardship, which is community-based leadership.”

DLNR DOCARE Dept Land and Natural Resources Maunakea
State officials have made multiple arrests of protesters on Mauna Kea that call themselves “protecters” of the mountain. This photo is from June 2016. Cory Lum/Civil Beat/2015

He added, “Critics always cite the 1998 report, which is almost 20 years old, but fail to mention the State Auditor’s follow up report in 2014 that said, ‘We found that UH has developed several management plans that provide a comprehensive framework for managing and protecting Mauna Kea while balancing the competing interests of culture, conservation, scientific research and recreation.”

Meisenzahl also said Amano’s detailed ruling and the Mauna Kea Comprehensive Management Plan also underscore that progress.

“Sure, there are conversations to be had, but nothing should discount the last 30 years and what’s been done,” he said.

But OHA believes that the time for talk is over. It said that a nearly two-year mediation process with the state and UH was unsuccessful

“The state and UH have failed as trustees and stewards of this beloved and sacred place,” said Kamana‘opono Crabbe, OHA’s chief executive officer. “It’s been nearly 20 years since the first audit identified major issues with the management of Mauna Kea, and it is unacceptable that these concerns continue to remain. Having exhausted all our options, we are compelled to file this lawsuit to hold the state accountable for its mismanagement.”

OHA’s Lawsuit Against Hawaii And UH, Nov. 7, 2017:

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