Ka Wai Ola - Office of Hawaiian Affairs, Volume 34, Number 1, 1 January 2017 — Haleakalā protest sets precedent for Mauna Kea [ARTICLE+ILLUSTRATION]

Haleakalā protest sets precedent for Mauna Kea

Submitted by the Native Hawaiian Legal Corp. One of the privileges of working at the Native Hawaiian Legal Corporation is witnessing the courage and strength of our clients, especially in the face of setbacks. Last year, 2016, provided NHLC with one of those opportunities and we want to recognize the seven year legal battle involving Kilakila "O Haleakalā (Kilakila), NHLC's organizational client that sought to protect the sacredness of Haleakalā. In 2010, Kilakila challenged the State Land Board's (BLNR) decision to allow the University of Hawai'i to begin construction on the gigantic solar telescope eomplex (in addition to the observatory, plans called for the construction of an operations building, utility build-

ing, wastewater treatment plant and parking lot) in an area in the State's conservation district. This classification recognizes that the area contains unique cultural, archaeological and natural resources or is a fragile ecosystem. Consequently, before any construction ean take plaee in a conservation district, one must show how the project will either not have an adverse impact on the area or that the impact may be sufficiently and specifically mitigated. Kilakila argued that the uni-

versity never proved its case and failed to explain how it had overcome a hnal Environmental Impact Statement that said the complex would have major negative impacts to cultural resources that could not be mitigated. The university had attached the report to its 2010 permit request to the

BLNR to eommenee construction. Over the past seven years and on four separate occasions, Kilakila requested a halt to construction so the legal process could proceed in a meaningful manner. Its requests were denied eaeh time. Kilakila appealed the State's decisions and, in 2013, the Hawai'i Supreme Court determined that "The BLNR should have held a contested case hearing as required by law and requested by Kilakila prior to decision making on UH's application." The Court's decision eame more than a year after the contested case concluded and the Board had approved the permit yet again. In the meantime the telescope construction was underway. Despite its inability to halt the telescope's construction and the repeated disappointments, Kilakila persisted in its pursuit of justice. While the Court's 2013 decision failed to protect Haleakalā, the legal precedent set by Kilakila heeame the primary basis for the Supreme Court's 2015 reversal of the BLNR's decision to approve the Thirty Meter Telescope on Mauna Kea. Like Haleakalā, the BLNR approved the permit prior to a hearing on the matter. While construction was set to begin before the Supreme Court's 2015 ruling, it has been halted and the hearing is now in process. The TMT controversy brought renewed attention to Haleakalā

as groups fought to stop further construction of the re-named Daniel K. Inouye Telescope (DKIST) atop Haleakalā while two Supreme Court cases remained pending including Kilakila's challenge to the second permit. The TMT decision eonfirmed the long held belief that in order to give petitioners their constitutional due process a contested case hearing must be held before the BLNR rules.

Nevertheless, in early October of this year, with the 14-story DKIST telescope more than halfway built, the Hawai'i State Supreme Court issued a decision in whieh it upheld the BLNR's subsequent approval of the CDUP, ruling against Kilakila as to all issues of procedural unfairness and this time determining that the telescope project met the criteria for building in the conservation district. Nearly two years had passed from the day the case was argued before the Court issued its three to two decision. "The decision brought feelings of dispair. But, I have had time to think," said Kiope Raymond, head of Kilakila. "I find my resolve to protect what I consider sacred - whieh includes all 'āina, land and sea - even more strengthened. Kilakila's gratitude to the NHLC, representing those of us without the legal or hnaneial ability to eonhnue to fight for justice for the 'āina, our kūpuna, and our beliefs, cannot be overstated. The IFA (Institute for Astronomy) may have the State Supreme Court's OK to build on our mountaintop but I believe that, for Haleakalā, we will always have the moral high ground. That will never be relinquished." In NHLC's motion to have the court reconsider its October decision, attorney David Frankel wrote, "It is also profoundly disappointing that this court appears, at least in this instance, to have abandoned its rigorous review of agency decision making . . . From the Appellant's per-

spective, the BLNR's decision was result-oriented; a post hoe rationalization for a preordained result in whieh eeonomie interests overrode any eoneem for the resources of the conservation district. The BLNR's decision involved superficial analysis, unsupported conclusions, illogical non-sequiturs, and empty rhetoric in plaee of 'reasonable clarity.' "Appellant has long recognized that although the facts and the law were firmly on its side, its chances of success before the BLNR were non-existent; and that its chances of success before the circuit and intermediate court of appeals were virtually nil. The forces aligned against the Appellant were vast: the senior U.S. senator, a Congressman-turned-Governor, labor pressure, and business interests. The only hope that those without political power have is the conscience and courage of this court." In his 102-page dissent, Justice Miehael Wilson eloquently described why Kilakila was entitled to a bonafide contested case hearing. "A hallmark of due process to whieh all parties are entitled in this case is an impartial decision-maker who receives evidence subject to puhlie view — an impartial deci-sion-maker equally accessible to all parties, whose decision is based on the evidence and law, with no regard to whieh party may be the most powerful politically or eeonomically." Although the legal challenges could not overcome the overwhelming political interests in seeing the DKIST built, Kilakila's legacy in standing up and speaking out against overwhelming odds is an important one as is the Court's end to the BLNR's practice that denied petitioners their right to due process. Native Hawaiian Legal Corporation has the utmost respect and aloha for Kilakila and all its supporters for their commitment, dedication to aloha 'āina against all odds. ■

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Efforts to protect Haleakalō set precedent for Mauna Kea. - Photo: Elaine Fergerstrom