Their pending decision could impact future development atop the mountain.
The state’s highest court heard arguments Thursday on how and whether to rein in development atop Mauna Kea, including with TMT should its existing approval expire.
The Department of Land and Natural Resources, through its board, has issued 13 permits since 1968 to build and operate telescopes within the Mauna Kea Science Reserve, which is a conservation district.
“The BLNR does not have a license to endlessly approve permits for construction in conservation districts based purely on the rationale that every additional facility is purely incremental,” Lance Collins, attorney for the appellants in the case, told the Supreme Court justices.
In 2019 Kuulei and Ahiena Kanahele filed what’s called a” petition for declaratory relief” with the state’s Land Use Commission, requesting the commission declare astronomy facilities including TMT as a “de facto industrial use precinct” that shouldn’t be within a conservation district. The LUC denied that petition, which said the DLNR and not the LUC, had jurisdiction. The Kanahele’s appealed straight to the Hawaii Supreme Court.
“It might be worth pointing out that the chair of the Land Use Commission said what we have is incremental decision making, with no one ever looking at the entirety of the summit and the impacts,” said Associate Justice Michael Wilson. “And the impacts of that process very clearly, from the record of this proceeding, does not allow for that possibility, even if cumulative impacts were looked at in terms of the last CDUP (conservation district use permit) issued.”
In a separate case in 2018, the Hawaii Supreme Court affirmed the BLNR’s issuance of TMT’s conservation district use permit.
“Actually, this court’s majority opinion in the TMT case considered the incremental argument,” said Ross Shinyama, attorney for TMT International Observatory LLC. “And so all of this was considered by this court when it approved the TMT project.”
The issue in this case is whether and how the Land Use Commission should be directed to proceed if the supreme court demands it back to them.
“The law is clear on its face,” said Jesse Souki, attorney for University of Hawaii, which has a role in stewardship of astronomy atop Mauna Kea. “It specifically says that the Land Use Commission places lands and districts, and the Board of Land and Natural Resources is responsible for determining uses.”
“Couldn’t the LUC just as easily rule that it has subject matter jurisdiction, but it’s up to the BLNR to decide reasonable uses?” asked Associate Justice Sabrina McKenna.
“I think a certain straightforward interpretation of its duty is to administer the lands, and what would limit its authority to initiate a land use change?” Wilson asked.
“I think if you’re the proposing party, as well as the decisionmaking party, your honor, respectfully, I think you run into some issues with respect to predetermination, cart before the horse,” Shinyama responded.
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The supreme court took the arguments under advisement. We’ll follow up when either an opinion or a remand is issued.