Observing Mauna Kea's Conflict

I.     Introduction

Perched quietly atop a long-dormant volcano on the most isolated landmass of Hawaii, thirteen of the largest and most advanced telescopes known to modern science dutifully survey the night sky, gathering light and information from the nearly unobstructed vantage at the highest point in the Pacific.[1] But long before telescopes and the annexation of Hawaii, Mauna Kea was a tremendous source of astronomical and meteorological understanding. From its peak, native Hawaiians gained much of the profound knowledge necessary to navigate vast distances across the Pacific, sailing from tiny island to tiny island using only skylights — sun, moon, and stars — as their guide.[2]

According to native Hawaiian religion, Mauna Kea is the meeting point between sky and earth, a temple built by the divine creator and the zenith of Hawaii’s ties to creation itself.[3] Believing the machinery desecrates their sacred summit and the scarce natural resources it shelters, native Hawaiians have opposed telescope development on Mauna Kea since it began nearly fifty years ago.[4] Despite this opposition, thirteen telescopes adorn Mauna Kea today.[5] The Thirty Meter Telescope (TMT), which will be larger and more powerful than any other on Earth, is likely to make fourteen.[6]

The summit land is held by the University of Hawaii, which subleases tracts to telescope corporations in exchange for access to the telescopes.[7] TMT obtained such a sublease and, in September 2010, applied for a Conservation District Use Permit (CDUP), seeking permission from the State Board of Land and Natural Resources (BLNR) to develop on Mauna Kea’s summit.[8] A group of Native Hawaiian residents and environmental groups (“petitioners”) challenged the application before the BLNR.[9] The BLNR approved TMT’s application over petitioners’ objections in February 2011 and reaffirmed its initial decision after an administrative appeal in April 2013.[10] Petitioners then filed an appeal in Hawaii State court challenging the BLNR’s final decision, which is pending as of the time of this writing.[11] While it seems that the native Hawaiians’ beleaguered resistance to telescope development will fail yet again, this Note attempts to articulate their best arguments in hopes of properly framing the social costs associated with the great scientific and technological gains that TMT will surely provide.

II.     The Legal Framework
Mauna Kea’s summit is subject to particular debate because it is both a designated Conservation District, which is governed by a detailed set of State Administrative Rules designed to protect against overdevelopment, and part of the “ceded lands” public trust, which carries heightened legal protections imposed by the public trust doctrine. Moreover, because many of the petitioners in the present controversy are native Hawaiians, special state constitutional protections are implicated. Finally, because petitioners’ claims draw upon their cultural and religious practices, both state and federal constitutional protections of the free exercise of religion are also relevant. The remainder of this section analyzes the BLNR’s final decision, which effectively paved the way for TMT, presenting the native Hawaiians’ arguments that are likely to be the strongest on appeal.

A.     Conservation District
Hawaii State law provides certain special protections for land within the State-designated Conservation Districts. There are eight statutory criteria for granting a CDUP laid out by Hawaii Administrative Rule 13-5-30.[12] The BLNR found that TMT satisfied all eight criteria.[13] While TMT very likely satisfies most, petitioners have a reasonable argument that it does not satisfy all eight criteria, and thus under a proper reading of the administrative rule fails to qualify for a CDUP, especially given that TMT bears the burden of demonstrating that TMT is “consistent with the above criteria.”[14] This section analyzes the four criteria most relevant to TMT.

i.     The proposed land use is consistent with the purpose of the conservation district.
Petitioners do not have a strong argument that TMT fails to satisfy this first criterion. The purpose of the Conservation District is to “conserve, protect, and preserve” the state’s significant natural resources through “appropriate management and use to promote their long-term sustainability and the public health, safety, and welfare.”[15] Conservation District rules do not seek to prohibit all development on conservation land. To the contrary, they condone “appropriate” use that will further its broader objectives of resource preservation.[16] To the extent that petitioners argue that any development on Mauna Kea violates conservation district policies, their argument will fail. Instead, petitioners should focus their challenge on TMT’s proposed management plans. However, because the BLNR already approved TMT’s cite-specific plan, and petitioners failed to timely challenge the project’s final Environmental Impact Statement,[17] any challenge here is unlikely to prevail.

ii.     The proposed land use will not cause substantial adverse impact to existing natural resources within the surrounding area, community, or region.
            Petitioners’ strongest potential argument falls under this criterion. As the BLNR explained, because this criterion refers to “existing natural resources,” it requires that a proposed project be assessed in the context of what is already there.[18] TMT conceded, and the BLNR accepted, that the cumulative effects of previous astronomical development on the summit have resulted in “significant and adverse” impact on “natural resources,” which is defined in the rules to include cultural as well as environmental resources.[19] But according to TMT, this newest project will not “tip the balance” of any existing impact from a level that is not significant to a level that is.[20] Petitioners attempted to argue that because TMT conceded that past impact had been “significant and adverse,” it thereby admitted that TMT itself would have substantial adverse impacts.[21] The BLNR found this argument unavailing,[22] and petitioners should not attempt to conflate these distinct concessions. Petitioners cannot now challenge impacts disclosed in the final Environmental Impact Statement, and they appear to have little credible testimony that TMT by itself will produce new significant adverse impacts not already induced by the current state of development.[23]

Instead, petitioners ought to argue that the BLNR employed an incorrect standard. It should not matter whether TMT will create new substantial adverse impacts if it will further any already existing substantial and adverse impacts. In other words, because development before TMT has caused a substantial and adverse impact on the summit’s resources, and TMT is not going to alleviate that impact, TMT will cause a substantial and adverse impact on those resources. Under this plausible reading of the rule, which is supported by the State Auditor’s general recommendation that impact be measured cumulatively,[24] no “tipping of the balance” is required, as long as any preexisting adverse impact is somehow furthered by this project.

While it is true that Hawaii courts have considered cultural resources in light of the current state of land development,[25] the proposed interpretation of the rule accords with this principle. Contrary to the BLNR’s characterization, this interpretation would not prevent all future development on Mauna Kea — it would merely require proposed projects to have zero net negative impact with respect to those resources that have already been substantially harmed by the current state of development. To prevail along these lines, petitioners would need to demonstrate specific resources among those already deemed substantially harmed that would be further affected by TMT. While mitigating strategies must be taken into account, and those impacts disclosed in the Environmental Impact Statement cannot be challenged, petitioners may still be able to point to such cultural or natural resources.[26]

iii.     The existing physical and environmental aspects of the land, such as natural beauty and open space characteristics, will be preserved or improved upon, whichever is applicable.
The visual impacts of a proposed project are considered in light of existing development.[27] What is more, high-visibility land uses are more permissible in less urbanized areas.[28] For the most part, it seems that TMT will not add to the visibility of the collection of telescopes already perched atop the summit — there will be very few places on the island where TMT will be the only visible telescope, and none of those places are “urbanized areas.”[29] Petitioners argued that the language of this criterion requires that TMT be “invisible.”[30] This argument did not convince the BLNR,[31] and is unlikely to succeed in the future. This condition refers exclusively to the existing physical and environmental aspects of the land, and TMT need not be invisible for the existing characteristics to be preserved. If petitioners can adduce evidence that TMT will materially increase the aggregate visibility of the telescopes on Mauna Kea, they would have a more plausible argument that even existing natural beauty characteristics will not be preserved. Based on the evidence presented so far, however, petitioners do not have a viable argument under this criterion.

iv.     The proposed land use will not be materially detrimental to the public health, safety, and welfare.
            Petitioners have a sound argument that TMT will be detrimental to their public health because it will contravene their cultural and religious beliefs. The issue here is that petitioners will need to demonstrate that such detriment will be material.[32] Petitioners argued that “public welfare” encompasses preserving Hawaii’s unique natural beauty but does not include social benefits such as job and revenue creation, educational prestige, and advancement of public knowledge.[33] This argument is untenable, and was quickly rejected by the BLNR.[34]

Instead, petitioners should argue that, while all of those considerations properly fall under public health, none of the ancillary benefits from the project in any way ameliorate the direct damage to their public health as native practitioners. In other words, there can be material detriment to public health with respect to native Hawaiians’ cultural and religious beliefs, while there is also some other benefit to public health with respect to job growth and public knowledge. Because this criterion lacks any language requiring cumulative balancing, petitioners are more likely to prevail if they can urge this interpretation and forcefully demonstrate the significant harm to their religious and cultural practices.

B.     Public Trust Doctrine
Under the public trust doctrine, courts assess whether the balance struck by the land use is reasonable and beneficial, taking into account both economic and social factors.[35] Petitioners argued that allowing any development on Mauna Kea violates the State’s mandate to protect its natural resources.[36] The BLNR rejected this argument,[37] and it will not succeed on appeal. Public trust doctrine creates a dual mandate for the State of Hawaii: it must protect its natural resources and provide for their maximal beneficial use.[38] The issue is not properly framed as a failure to protect; indeed, protection of resources under the doctrine has been deemed satisfied as long as the State does not irrevocably transfer any of its public trust land to private entities, which it has not done here.[39]

The Hawaii Supreme Court in Waiahole held that private commercial use is not a protected public trust use.[40] However, the University of Hawaii is not a traditional private actor and its proposed use is not private commercial.[41] Instead, TMT will advance knowledge and foster educational opportunities and prestige for the State.[42] These are social benefits that likely merit protection under the doctrine. But, native Hawaiian traditional uses are also socially beneficial uses that have been expressly protected under the doctrine.[43] The BLNR is charged with ensuring that all public trust purposes are protected to the extent feasible, and is not to give weight to any one valid purpose over another.[44]

Accordingly, while the University’s interests may be “superior” to exclusively private commercial interests like those in Waiahole,[45] they are not to be afforded any greater weight than petitioners’ interests. Petitioners’ best strategy here is to somehow demonstrate that their use of the land in question cannot coexist with TMT, such that the balance of competing uses skews in their favor. While the BLNR found “a dearth of native Hawaiian uses of the specific location of the TMT project,”[46] petitioners may not need to demonstrate significant use of the site itself if it can sufficiently explain how any use of that area is inconsistent with their protected religious and cultural use of the summit as a whole.

C.     Customary and Traditional Native Hawaiian Rights
The Hawaii State Constitution affords special protection to “all rights, customarily and traditionally exercised for subsistence, cultural and religious purposes . . . of native Hawaiians.”[47] This protection is explicitly subject, however, to the “right of the State to regulate such rights.”[48] Statutory law also incorporates “Hawaiian usage” into the common law governing the State.[49] The Hawaii Supreme Court has interpreted these provisions to protect customary rights and practices that were in use before November 25, 1892.[50] Only people who are descendants of the native Hawaiians who inhabited the islands prior to 1778 are eligible for special protection, but there is no minimum blood quantum required to establish relation.[51]

While petitioners succeeded in demonstrating their native Hawaiian roots, they failed to adduce any support that their asserted cultural and religious conduct was in use by November 25, 1892.[52] To have any chance of success, petitioners will have to produce some historical evidence, even in the form of lay testimony, that their practices predate November 25, 1892. The BLNR also focused on petitioners’ failure to provide evidence that their practices utilize the specific land on which TMT will be constructed.[53] This reasoning is susceptible to challenge, however, because protected cultural or religious practices could plausibly depend on certain resources in a spiritual manner that does not require physically touching those resources. Even if petitioners cannot allege that any qualifying practices actually occurred on TMT’s site, they may be able to explain how aesthetic, spiritual, or other alterations to the nearby landscape directly affects their protected practices. It seems unlikely that any court would question petitioners’ genuine interpretation of their own religious practices.[54]

Even if petitioners are able to establish that their practices qualify for special constitutional protection, they remain “subject to the right of the State to regulate [their] rights.”[55] The State must protect qualifying rights “to the extent feasible,”[56] but such protections are not absolute. As the BLNR pointed out, the Hawaii Supreme Court in State v. Pratt recently explained that even after all of the factors have been established to confer constitutional protection to native Hawaiian practices, courts should still balance the interests considering the totality of the circumstances.[57] But the BLNR’s treatment of this additional step was cursory,[58] and petitioners would be wise to point out that, unlike the easy balancing in Pratt where the countervailing interest was in the enforcement of State criminal law, any balancing here ultimately drives at fundamental and difficult issues of science versus religion. Petitioners should further argue that, in light of the deliberate protection afforded to native practices both in Hawaii’s Constitution and its common law, special solicitude ought to be afforded to native Hawaiians’ interests.

D.     Religious Freedom
Because many of the petitioners in the present controversy invoke claims based on their religion, both state and federal constitutional protections are implicated. When considering free exercise claims under both article I section 4 of the Hawaii Constitution and the First Amendment to the federal Constitution, the Hawaii Supreme Court examines whether the activity with which the State interfered was motivated by a sincerely held religious belief, the extent of the regulation’s impact on the parties’ free exercise of religion, and whether the State had a compelling interest behind the regulation sufficient to justify such a burden.[59] The sincerity of asserted religious beliefs are rarely questioned in court.[60]

Petitioners must demonstrate that TMT substantially burdens their religious beliefs by impinging their constitutionally protected practices.[61] Petitioners argued that their religious interests give them effective veto power over any development on State land that impacts their beliefs.[62] This line of argument was easily dismissed by the BLNR.[63] Petitioners’ only viable option here is to carefully identify those practices that will be hampered by TMT, and explain how that hindrance substantially burdens their religious interests. Again, the BLNR seemed to focus on requiring a direct physical link between TMT and petitioners’ religious practices.[64] As discussed above, this distinction is susceptible to challenge. Even if petitioners can demonstrate substantial burden, their claims would have to prevail over the State’s countervailing interest in promoting the University and increasing public knowledge.

III.     Conclusion
As evidenced by the above analysis, the native Hawaiians’ legal arguments are generally thin and unlikely to succeed on appeal. Once again, the hope that they have placed in the legal system to protect their religious and cultural interests appears on the verge of disappointment. While this outcome likely looks and feels like a failure of the system from native Hawaiians’ perspective — another injustice programmed into a legal machine not built for them — from a different point of view, the ethical ramifications are less than clear. Just as many of the legal arguments seem to boil down to petitioners’ need to articulate the particular harm that they will experience as a direct result of TMT, so too the social and ethical considerations depend on what, exactly, TMT’s construction will cost them. The most socially responsible and beneficial use for this extraordinary place today would seem to be one that maximizes, to every extent possible, the wonders that Mauna Kea has to offer.

Amid the strife, there is a grace to Mauna Kea’s astronomical continuity. Some native Hawaiians believe that telescopes like TMT can, under the right management, coexist with their culture and religion.[65] But petitioners do not share those beliefs, and Mauna Kea is every bit as much their cultural and spiritual heritage. From their perspective, TMT is just another giant stake in their most sacred land, another claim to a place that they never chose to “cede” to anybody. As we continue to look out at our universe with such vigor, we should remain dedicated to looking around at those who bear the burden of our endeavors, always ready to more fully understand the nature of that burden in hopes of working to minimize it.