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In the Supreme Court of the State of Hawai'i

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In the Supreme Court of the State of Hawai'i ** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ** Electronically Filed Supreme Court SCOT-17-0000777 30-NOV-2018 03:48 PM IN THE SUPREME COURT OF THE STATE OF HAWAIʻI ---oOo--- ________________________________________________________________ IN THE MATTER OF CONTESTED CASE HEARING RE CONSERVATION DISTRICT USE APPLICATION (CDUA) HA-3568 FOR THE THIRTY METER TELESCOPE AT THE MAUNA KEA SCIENCE RESERVE, KAʻOHE MAUKA, HĀMĀKUA, HAWAIʻI, TMK (3)404015:009 ________________________________________________________________ SCOT-17-0000777, SCOT-17-0000811, & SCOT-17-0000812 APPEAL FROM THE BOARD OF LAND AND NATURAL RESOURCES (BLNR-CC-16-002 (Agency Appeal)) NOVEMBER 30, 2018 RECKTENWALD, C.J., MCKENNA, J., and CIRCUIT JUDGE CASTAGNETTI IN PLACE OF NAKAYAMA, J., RECUSED, WITH POLLACK, J., CONCURRING IN PART, WITH WHOM WILSON, J., JOINS AS TO PARTS I-III, AND WILSON, J., DISSENTING AMENDED OPINION OF THE COURT BY MCKENNA, J., IN WHICH POLLACK, J., JOINS EXCEPT AS TO PART V.C.1 I. Introduction These appeals were filed from a September 27, 2017 decision of the Board of Land and Natural Resources (“BLNR”) authorizing issuance of a Conservation District Use Permit for the Thirty Meter Telescope (“TMT”) near the summit of Mauna Kea. ** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ** Appellant Native Hawaiian1 cultural practitioners believe that Mauna Kea, as a sacred manifestation of their ancestry, should be honored in its natural state and is desecrated by development of astronomy facilities near its summit. In contrast, Appellees submit that telescope use is an allowed and appropriate use of the summit area, that various measures are being taken to reduce the impact of the TMT, and that Mauna Kea can also be honored through the advancement of scientific knowledge that TMT would provide. 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 TMT. 1 The term “Native Hawaiian” refers to one “whose ancestors were natives of the Hawaiian Islands prior to 1778, without regard to blood quantum,” while the term “native Hawaiian” refers to one with at least fifty percent Hawaiian ancestry. Melody Kapilialoha MacKenzie & D. Kapuaʻala Sproat, A Collective Memory of Injustice: Reclaiming Hawaiʻi’s Crown Lands Trust in Response to Judge James S. Burns, 39 U. HAW. L. REV. 481, 528 (2017). See also JON M. VAN DYKE, WHO OWNS THE CROWN LANDS OF HAWAIʻI? 1 n.1 (2008) (using the term “Native Hawaiian” to “refer to all persons descended from the Polynesians who lived in the Hawaiian Islands when Captain James Cook arrived in 1778,” and distinguishing it from the term “native Hawaiian,” which is defined as a person with 50 percent or more Hawaiian blood in the Hawaiian Homes Commission Act, 1920, ch. 42, sec. 201(a)(7), 42 Stat. 108 (1921)). 2 ** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ** II. Factual and Procedural Background A. The Mauna Kea Summit Some Native Hawaiians, including some of the appellants, consider Mauna Kea, which rises to an elevation of 13,796 feet above sea level, to be an ancestor, a living family member and progenitor of Hawaiians, born of Wākea (Sky Father) and Papa (Earth Mother). They consider the Mauna Kea summit area, also known as Kūkahauʻula (cluster of puʻu or cinder cones), to be a wahi pana (storied place) and wao akua (the place where gods reside), the realm of ancestral akua (gods, goddesses, deities) believed to take earthly form as the puʻu, the waters of Lake Waiau, and other significant landscape features. The summit of Mauna Kea is thought to touch the sky in an unique and important way, as a piko (navel) by which connections to the ancestors are made known to them, or as the piko hoʻokahi (the single navel), which ensures spiritual and genealogical connections, and the rights to the regenerative powers of all that is Hawaiʻi. The large number of shrines on Mauna Kea indicate that there was a pattern of pilgrimage, “a walk upward and backward in time to cosmological origins,” to worship the snow goddess Poliʻahu and other akua such as Kūkahau, Līlīnoe, and Waiau. As discussed later, various Native Hawaiian traditional and customary practices are derived from these beliefs, which have also led to related contemporary cultural practices. 3 ** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ** Before Western contact, the summit area was considered kapu (taboo) to all but the highest chiefs and priests, and unavailable to the general public. Archaeological research also indicates that from as early as 1100 A.D., and continuing through the 1700s up until the time of Western contact, Native Hawaiians mined extremely high quality, dense, blue-black basalt in a 4,800 acre adze quarry on the southern slopes of Mauna Kea concentrated between 11,500 and 12,400 square feet above sea level to produce tools to cut trees, shape canoes, and carve other smaller items. B. Development of Modern Astronomy on Mauna Kea Summit After statehood, in 1968, the BLNR entered into a General Lease with the University of Hawaiʻi (“University”) for the Mauna Kea Science Reserve (“MKSR”); the General Lease is scheduled to terminate on December 31, 2033. The MKSR totals 11,288 acres, consisting of a 10,763-acre cultural and natural preserve and a 525-acre Astronomy Precinct, and includes almost all of the land on Mauna Kea above the 12,000-foot elevation, except for certain portions that lie within the Mauna Kea Ice Age Natural Area Reserve (“MKIANAR”). The General Lease allows the University to use the MKSR as a scientific complex and reserve. The University began operating the first observatory on Mauna Kea in 1968. Thereafter, the following additional astronomical observatories 4 ** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ** became operational in the summit region of the MKSR: the University 2.2-meter Telescope (1970), the United Kingdom Infrared Telescope (“UKIRT”)(1979)(now owned by the University), the NASA Infrared Telescope Facility (operated by the University)(1979), the Canada-France-Hawaiʻi Telescope (1979); (5) the California Institute of Technology (“Caltech”) Submillimeter Observatory (“CSO”)(1986), the James Clerk Maxwell Telescope (“JCMT”)(1986)(now owned by the University), the Very Long Baseline Array (1992), the W. M. Keck Observatory, first phase (1992) and second phase (1996), the Subaru Observatory (“Subaru”)(1999), the Gemini North Observatory (1999), and the Submillimeter Array (2002). The 4.6 mile segment of Mauna Kea Access Road just past the Onizuka Center for International Astronomy (also known as Hale Pōhaku),2 located at the 9,200 foot level of Mauna Kea, is unpaved until just above 11,600 feet, where it then extends near to the summit and loops along the Puʻu Kea, Puʻu Hauʻoki, and other puʻu to reach existing observatories through paved or unpaved driveways. The roads have also increased access to the summit area of Mauna Kea for at least some Native Hawaiian cultural practitioners. Construction of these observatories and roads has had significant cumulative adverse impacts on cultural, 2 The University also manages the Hale Pōhaku mid-level facilities and the Summit Access Road between Hale Pōhaku and the MKSR, including 400 yards on either side of the road, but excluding the MKIANAR. 5 ** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ** archaeological, and historic resources in the MKSR. The observatories have also had significant cumulative adverse impacts on geology, soils, and slope stability in the MKSR because they significantly modified the preexisting terrain, the tops of certain puʻu were flattened to accommodate observatory foundations, and some materials removed from the puʻu were pushed over their sides, creating steeper slopes more susceptible to disturbance. In response to significant criticism raised in a 1998 audit, the University’s Board of Regents (“BOR”) adopted the MKSR Master Plan (“Master Plan”) in 2000, which updated management guidelines for the areas of Mauna Kea managed by the University, including the MKSR. The Master Plan established the Office of Mauna Kea Management (“OMKM”), housed in the University of Hawaiʻi at Hilo (“UHH”). The OMKM is advised by volunteer residents of the Big Island of the Mauna Kea Management Board and Kahu Kū Mauna (Guardians of the Mountain) to effectuate the Master Plan’s goals of (1) protecting cultural, natural, educational/scientific, and recreational resources; (2) preserving and protecting the cultural and natural landscape; (3) preserving and managing cultural resources and practices for future generations; (4) defining areas for use of cultural, natural and recreational resources; (5) protecting the right to exercise traditional cultural 6 ** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ** practices; (6) allowing for sustainable, integrated planning and management; and (7) protecting and enhancing astronomy research. The Master Plan identifies five types of astronomy development and their locations within the 525-acre Astronomy Precinct area of the MKSR, described as Areas A through F, for redevelopment or expansion of existing observatory facilities. These locations include Area E, intended for development of a next generation large telescope, such as the TMT. After preparation of the Master Plan, a Comprehensive Management Plan was also finalized in April of 2009. Various sub-plans were also prepared, including a Cultural Resources Management Plan and a Decommissioning Plan for the decommissioning of existing telescopes. C. The TMT In 2003, Caltech and the University of California formed the TMT Corporation, a California non-profit public benefit corporation, for the purpose of fostering astronomy through building a thirty meter telescope.
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