By all accounts, the Mauna Kea Comprehensive Management Plan (CMP), prepared by contractors for the University of Hawai‘i and adopted on April 9 by the state Board of Land and Natural Resources, isn’t what it should be. Even its authors and supporters admit that it’s a work in progress. Most notably, it doesn’t address any proposed new development for the summit of Mauna Kea, despite the fact that the site is one of only two (the other is Chile) being considered for the massive Thirty Meter Telescope (TMT).
Because of the plan’s deficiencies, the Land Board has required the university to submit for approval four sub-plans – regarding public access, natural resources, cultural resources, and the decommissioning of telescopes – within one year or before the submission of a Conservation District Use Application for any new use, whichever comes sooner. When Land Board member Tim Johns asked the Department of Land and Natural Resources’ Office of Conservation and Coastal Lands administrator Sam Lemmo whether he was comfortable with the fact that the CMP does not address decommissioning, the use of ceded lands for $1 a year, the proposed TMT and Pan-STARRS (another telescope), and other major issues of commu- nity concern, Lemmo said, “I’m comfortable with the process moving forward.”
Several people testifying at the Land Board’s meeting requested or reserved their right to request a contested-case hearing challenging board approval. As of mid-April, the OCCL had received follow-up written requests for a contested case hearing from Dwight Vincent, Clarence Ching, KAHEA: the Hawaiian-Environmental Alliance, Mauna Kea Anaina Hou, and a joint petition from the Royal Order of Kamehameha I, Moku o Mamalahoa, and Heiau Helu Elua.
Background
In 1968, the state leased the summit of Mauna Kea to the university for astronomical purposes. Over the years, plans adopted by the Land Board limited the number of major telescopes to 13. According to Lemmo, the university is “pretty much at buildout capacity” right now.
Despite the capacity limit, the Land Board approved a controversial Conservation District Use Permit in 2004 for the construction of six telescope components, called outriggers, for the W.M. Keck Observatory. In 2006, that permit was overturned by Third Circuit Judge Glenn Hara in response to a complaint brought against the Land Board by Mauna Kea Anaina Hou, the Hawai‘i Chapter of the Sierra Club, Clarence Ching, and the Royal Order of Kamehameha I.
Hara found that the DLNR’s rules require the adoption of a “comprehensive” management plan for Mauna Kea’s summit before aCDUP can be issued for any use. He determined that neither the university’s 2000 Mauna Kea master plan nor the DLNR’s 1995 management plan met rule requirements.
While NASA funding cuts had stalled the Keck project by the time Hara issued his decision, the university, anticipating more development on Mauna Kea, hired consulting firm Ku‘iwalu to draft a comprehensive management plan as soon as possible. The university’s Office of Mauna Kea Management, which was established by the 2000 master plan, had already begun work on its own cultural and natural resource management plans, but according to UH president David McLain, Ku‘iwalu was chosen to take the lead because the OMKM – with its tiny staff and $1 million-a-year budget – lacked the resources to draft a plan quickly.
“We outsourced to make progress. Dawn [Chang, Ku‘iwalu principal] and her team have tried to involve the Office of Mauna Kea Management and the Mauna Kea Management Board (also established by the 2000 Master Plan) and fulfill the rate of progress” needed by the university, he told the Land Board at its April meeting.
In the latter half of 2008, Ku‘iwalu gathered public input for the proposed plan with the intention of seeking Land Board approval in December of that year. Had the board approved the plan by then, the university planned to pursue state legislation this year to establish administrative rules for the OMKM. Even though the university’s decision to do an environmental assessment pushed the CMP approval deadline to April, the university sought the rulemaking authority from the Legislature this year anyway.
Comprehensive enough?
When the university unveiled its CMP in February, many criticized the plan for failing to consider future development, address adequate compensation for the use of ceded lands, and include details of proposed management actions, among other things. The plan, which raises the possibility of limiting public access to the summit and other sensitive areas, also sparked concern among Native Hawaiian cultural practitioners that the university sought to restrict their activities on the mountain, which they consider to be one of the most sacred sites in the Pacific.
In a March 9 EA comment letter from the Office of Hawaiian Affairs, administrator Clyde Namu‘o wrote, “[T]he current draftCMP is virtually silent on all land uses, thereby not meeting the basest requirement for a management plan.” Namu‘o referenced Judge Hara’s citation of the DLNR’s own rule (HAR Chapter 13-5) that states, “ ‘Management plan means a comprehensive plan for carrying out multiple land uses’….The plain meaning of the term ‘comprehensive’ sug- gests a scope that is ‘all-covering, all-embracing, all-inclusive, all-pervasive’…”
Namu‘o continued, “Presuming that the University of Hawai‘i intends, should this CMP be approved, to reapply for a permit to construct and operate the Outrigger Telescope Project in a resource subzone of a Conservation District in the Astronomy Precinct of Mauna Kea, there is no way that it could conform to this CMP either, because this CMP includes no land use analysis and no mention of the Astronomy Precinct at all.”
When the Land Board met in Hilo on April 8 and 9 to hear testimony and take action on the CMP, Lemmo said Hara’s decision was “largely one of the reasons why we’re here today, the only reason.” But his report to the Land Board was silent on whether or not the proposed CMP complied with Hara’s decision. Lemmo recommended that the board approve the plan with several conditions requiring annual reports, board approval of all CMP amendments, and the retention of Land Board authority over access, among other things.
Board member Johns observed that the university had taken the position that the CMP fulfills Hara’s order, while Lemmo had not done so. Lemmo replied, “Not to dodge the question [but] I haven’t looked at this plan in light of Hara. It was a narrow decision in the context of a Conservation District Use Permit. This CMP is not being submitted with a pending project.”
Hara’s decision aside, university president McClain said that if the CMP were approved, the OMKM would be responsible for implementation and that the university’s Board of Regents would soon be voting on a commitment to finance the CMP. Office of Mauna Kea Management acting director Stephanie Nagata estimated this would cost about $1.5 million a year.
Those testifying in support of the CMP included OHA, in a surprising turnaround, as well as representatives of each of the observatories on Mauna Kea, and the real estate, construction, and business communities, among others. All urged the board to approve the plan as an important step toward better management of Mauna Kea. Many also sported black T-shirts emblazoned with the words, “Malama Mauna Kea” and wore yellow buttons saying “Mauna Kea CMP YES!”
Among the supporters was Ed Stevens of the university’s Kahu Ku Mauna Council. “Currently, this urgently needed CMP sits before you, awaiting approval,” Stevens said. “It’s only part one of three major hurdles. The second hurdle is the critical need for ‘rule making authority’, which goes hand-in-hand with the CMP to properly manage the mountain. The third hurdle is acquiring funds for the staffing and implementation of the CMP.”
Despite the show of support for the CMP, the board wanted more detail from the plan and attempted to get it via the four subplans.
As Marti Townsend of KAHEA: the Hawaiian Environmental Alliance wrote in her testimony, “How can a plan be considered ‘all-inclusive’ when it is intended as the first installment of a longer deliberative process, which purposefully leaves significant management questions completely unanswered? It can’t.”
Access
In its presentation to the Land Board on the need to restrict public access, university representatives showed pictures of graffiti on the mountain, cultural sites that had been knocked over, a truck off-roading in the snow, and bumper-to-bumper traffic on the summit access road. They also pointed out that archaeological surveys had identified 222 cultural sites in the science reserve, and an increasing number of “find spots” or stacked stones of recent origin.
The CMP proposes granting the Office of Mauna Kea Management authority to restrict access to protect Mauna Kea’s resources, which include the rare wekiu bug, burial sites, Lake Waiau and Pu‘u Ha‘oki, among others. But planner Chang of Ku‘iwalu said that any restriction would be subject to community discussion and that the rulemaking legislation currently being proposed would not give the university any more authority over access than what it already has under its lease.
Despite Chang’s assurances regarding community consultation, Kealoha Pisciotta of Mauna Kea Anaina Hou argued against theCMP’s proposal to have the university’s Kahu Ku Mauna Council work with the community to determine culturally appropriate practices on the mountain.
“Having the university decide what is culturally appropriate is not appropriate,” she said.
While some CMP opponents argued that the Land Board would be illegally delegating its authority to control access to Mauna Kea if it approved the CMP, Lemmo pointed out that one of the conditions of approval was that the board ultimately be responsible for controlling access.
“Control over access, native Hawaiian access, cannot be transferred to this plan,” he said.
Should the Legislature pass a bill (pending at press time) to give the university rulemaking authority to manage and control public activities and access on Mauna Kea, the deputy attorney general advising the Land Board noted that such a delegation would not violate the Kapa‘akai vs. LUC, a Supreme Court case that prohibits state agencies from transferring their responsibility to determine the effects on customary and traditional Native Hawaiian practices and the means to protect such practices. In the Kapa‘akai case, the LUC had tried to delegate its responsibilities to a third party; in this case, the university is just another state agency, she said.
Natural and Cultural Resources
With regard to the cultural and natural resources plans initiated by the Office of Mauna Kea Management, some of those involved in their development complained that the recommendations contained in those plans had been left out of the CMP because the university viewed them as too restrictive.
“This was the most likely reason that the detailed, and excellent, Natural Resources Management Plan prepared by SRGII, under contract to the University through OMKM, was omitted,” said Fred Stone in written testimony to the board. “I was among a group of scientists invited to comment on the Natural Resources Management Plan when it was presented in November 2008. It was clearly intended that this plan would be included in the MKCMP. That it was not included implies that the university intends to keep their document vague and ambiguous so that they can avoid the responsibility of actually carrying it out in a meaningful way.”
Board member Johns and board chair Laura Thielen asked university representatives how the OMKM plans fit in with the CMP. “If they’re so integral, are we approving a plan that’s incomplete today?” Johns asked.
Barry Taniguchi, president of the Mauna Kea Management Board, said he wanted the plans to be brought to the Land Board for inclusion into the CMP, while Chang said that the plans were not integral and were rather only informational documents.
Regardless of how they are incorporated, Ron Terry, a member of the Mauna Kea Management Board who helped initiate the natural resources management plan, said he believed that the CMP is generally consistent with the more detailed OMKM plans.
“I agree with, or do not disagree with, nearly all of its management recommendations,” he said.
In the end, the Land Board chose to have some version of them included.
Decommissioning
While there was little public testimony regarding the decommissioning of telescopes, the Land Board chose to require a subplan to address it, since the lease does not and cannot be amended to require it. McClain said that while the university has not formally decided to decommission any of the facilities on Mauna Kea, there are a few sites where “we’ve begun to look at costs of taking them down at the end of their life.”
Land Board chair Thielen told McClain that state leases often require bonds to cover remediation costs, and when she recommended that the board make a decommissioning plan a priority, McClain welcomed the requirement. In approving the CMP, the board stated that the decommissioning plan should include some kind of funding mechanism to pay for decommissioning.
‘One stinking dollar’
Many of the those testifying in opposition to the CMP complained about the $1/year lease rent, a rate the Land Board had often applied when leasing lands to other government agencies or non-profit organizations.
Citing news reports about Yale University’s recent contract with the Caltech telescope operator to pay $12 million for viewing time on the Keck telescope, they argued that the Land Board should renegotiate the lease rent to provide more money to the Office of Hawaiian Affairs, to the Hawaiian community, and to pay for better management of the mountain.
“One stinking dollar. Here’s two. Give me the mountain,” Paul Neves of the Royal Order of Kamehameha I told the board. Neves also requested a contested case hearing and told the board, “We’ll probably see you in court again.”
Moanikeala Akaka added that the DLNR’s recent proposal to start charging fees to enter certain state parks would be unnecessary if the Land Board only got more rent from the use of Mauna Kea.
“Why do you have to do an un-aloha thing – charging people to enter parks? Get that money out of the sacred coffers of the [university’s] Institute for Astronomy,” she said.
In discussing this issue with Lemmo, Land Board chair Laura Thielen pointed out that the lease does not allow the board to renegotiate the rent. In addition, UH’s McClain said that the university does not make any money on its subleases and is compensated largely with telescope time. He acknowledged that telescope time has value, but added that the university had never attempted to “monetize” it. McClain said that while it may be possible to negotiate for money instead of some telescope time on future telescopes, current sub-lessees are under no obligation to renegotiate. He said that the university’s scholarships and financial aid in support of native Hawaiian students exceeds $2 million a year, which was a way of indirectly compensating Native Hawaiians for the use of ceded lands.
With regard to future subleases, McClain said, “the old days of $1 rent and telescope time are gone.”
At the end of the meeting, the board voted unanimously to approve a motion by Johns to adopt the CMP with several conditions. Big Island member Rob Pacheco recused himself from voting; O‘ahu member Taryn Schuman was absent.
Board Waives Rent For Biofuel Plant
In November 2007, the Land Board granted a 35-year lease to Imperium Renewables Hawai‘i, LLC for 11 acres at Barbers Point Harbor, O‘ahu, where the company proposed to build a biofuel processing facility. The company planned to turn palm oil into fuel, which it then would sell to Hawai‘i Electric Company. The board chose to waive Imperium’s rent for the first year (starting February 1, 2008), since the company was planning to invest more than $50 million into improving the property.
The economic downturn that occurred since the board’s decision, however, has hampered Imperium’s ability to obtain financing and to start paying rent, which became due on February 1. So at its March 27 meeting, the Land Board approved a recommendation from the Department of Transportation’s Harbors Division to delay the start of the lease by one year – to February 1, 2009 – upon payment by Imperium of a $100,000 fee. The board also added a condition to its approval that it could terminate the lease if Imperium fails to make any progress by January 1, 2010. Land Board member Tim Johns, who sits onHECO’s board of directors, recused himself from voting on the matter.
Continued Closure Of Kahauale‘a
At its April 6 meeting, the state Natural Area Reserves System Commission voted to recommend that the Board of Land and Natural Resources keep the Kahauale‘a NAR closed for two years.
The Land Board voted in February to close the NAR until July 25, because Kilauea Volcano’s Pu‘u O‘o vent had opened a series of fissures in a popular hiking and hunting area in the lower third of the NAR. The NAR had been closed since last July, following recommendations from the Hawai‘i Civil Defense agency and the U.S. Geological Survey’s Hawai‘i Volcano Observatory.
With the dangerous conditions unchanged, Big Island NARS manager Lisa Hadway asked the NARS commission last month to again recommend that the Land Board keep the reserve closed.
Richard Hoeflinger, the hunter representative on the commission, voted against the extended closure, arguing that the entire reserve did not need to be closed when only a third of it posed a danger to the public. Even if that were true, Hadway said that there is no practical way to physically close off a portion of the NAR to one user group while allowing access for another. “There’s no question that I wish we could differentiate between user groups [but] it’s very difficult to draw a line in the sand,” she said. Since she was most concerned about visiting hikers, Hadway said she was willing to develop a special use permit to allow hunters to continue to access the NAR.
Deputy Attorney General Linda Chow added that with regard to the state’s liability, “If there are naturally occurring cracks, you need to provide notice about the terrain, then there’s no problem. In the case of lava flow, where the area is dangerous no matter how many signs you put up, it’s a problem.” She noted also that closing a portion of the NAR would raise enforcement issues that may not easily be dealt with. A special use permit for hunters “would probably work from the state’s liability perspective, but not from the hunter’s perspective,” she said.
— Teresa Dawson
May 2009
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