Summary
holding the agency satisfied HRS § 91-12’s requirements through the inclusion of a substantially similar paragraph in the introduction to the agency decision
Summary of this case from In re Surface Water Use Permit ApplicationsOpinion
SCOT-17-0000777, SCOT-17-0000811, & SCOT-17-0000812
10-30-2018
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, Ka‘ohe Mauka, Hamakua, Hawai‘i, TMK (3)404015:009
Richard Naiwieha Wurdeman for appellants, Mauna Kea Anaina Hou, Kealoha Pisciotta, Clarence Kukauakahi Ching, Flores-Case ‘Ohana, Deborah J. Ward, Paul K. Neves, and Kahea: The Hawaiian Environmental Alliance Gary Z. Zamber for intervenor-appellants, Temple of Lono, Mehana Kihoi, Joseph Kuali‘I Camara, Leina‘ala Sleightholm, Kalikolehua Kanaele, Tiffnie Kakalia, Brannon Kamahana Kealoha, Cindy Freitas, and William Freitas Intervenor-appellant, Harry Fergerstrom, pro se, on the briefs Clyde J. Wadsworth (William J. Wynhoff, Kimberly Tsumoto Guidry, Julie China, and Kaliko‘onalani D. Fernandes with him on the briefs), for appellees State of Hawai‘i, Board of Land and Natural Resources, and Chairperson Suzanne D. Case John P. Manaut, Ian L. Sandison, Joyce W.Y. Tam-Sugiyama and Lindsay N. McAneeley for appellee, University of Hawai‘i at Hilo Ross T. Shinyama and J. Douglas Ing (Brian A. Kang and Summer H. Kaiawe with them on the briefs) for intervenor-appellee, TMT International Observatory LLC Lincoln S.T. Ashida and Newton J. Chu (Vaughn G.T. Cook with them on the briefs) for intervenor-appellee, Perpetuating Unique Educational Opportunities, Inc.
Richard Naiwieha Wurdeman for appellants, Mauna Kea Anaina Hou, Kealoha Pisciotta, Clarence Kukauakahi Ching, Flores-Case ‘Ohana, Deborah J. Ward, Paul K. Neves, and Kahea: The Hawaiian Environmental Alliance
Gary Z. Zamber for intervenor-appellants, Temple of Lono, Mehana Kihoi, Joseph Kuali‘I Camara, Leina‘ala Sleightholm, Kalikolehua Kanaele, Tiffnie Kakalia, Brannon Kamahana Kealoha, Cindy Freitas, and William Freitas
Intervenor-appellant, Harry Fergerstrom, pro se, on the briefs
Clyde J. Wadsworth (William J. Wynhoff, Kimberly Tsumoto Guidry, Julie China, and Kaliko‘onalani D. Fernandes with him on the briefs), for appellees State of Hawai‘i, Board of Land and Natural Resources, and Chairperson Suzanne D. Case
John P. Manaut, Ian L. Sandison, Joyce W.Y. Tam-Sugiyama and Lindsay N. McAneeley for appellee, University of Hawai‘i at Hilo
Ross T. Shinyama and J. Douglas Ing (Brian A. Kang and Summer H. Kaiawe with them on the briefs) for intervenor-appellee, TMT International Observatory LLC
Lincoln S.T. Ashida and Newton J. Chu (Vaughn G.T. Cook with them on the briefs) for intervenor-appellee, Perpetuating Unique Educational Opportunities, Inc.
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.
Appellant Native Hawaiian 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.
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. Kapua‘ala Sproat, A Collective Memory of Injustice: Reclaiming Hawai‘i’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 Hawai‘i? 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) ).
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.
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 Wakea (Sky Father) and Papa (Earth Mother). They consider the Mauna Kea summit area, also known as Kukahau‘ula (cluster of pu‘u 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 pu‘u, 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 ho‘okahi (the single navel), which ensures spiritual and genealogical connections, and the rights to the regenerative powers of all that is Hawai‘i. 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 Poli‘ahu and other akua such as Kukahau, Lilinoe, 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.
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 Hawai‘i ("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 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-Hawai‘i Telescope (1979); 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 Pohaku), 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 Pu‘u Kea, Pu‘u Hau‘oki, and other pu‘u 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.
The University also manages the Hale Pohaku mid-level facilities and the Summit Access Road between Hale Pohaku and the MKSR, including 400 yards on either side of the road, but excluding the MKIANAR.
Construction of these observatories and roads has had significant cumulative adverse impacts on cultural, 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 pu‘u were flattened to accommodate observatory foundations, and some materials removed from the pu‘u 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 Hawai‘i at Hilo ("UHH"). The OMKM is advised by volunteer residents of the Big Island of the Mauna Kea Management Board and Kahu Ku 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 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. In 2008, the TMT Corporation, in consultation with the University, began assessing the development of the TMT in Area E, on the northwest slope of Mauna Kea, below the summit ridge. This location was selected for a next generation large telescope (1) due to its significant distance from historical and cultural sites, including Kukahau‘ula and Lake Waiau, (2) to minimize visibility from significant cultural areas on the summit and from Waimea, Honoka‘a and Hilo, (3) to reduce wind shear forces, (4) because it is not a good wekiu bug habitat, and (5) to minimize its potential to obscure astronomical observations by existing observatories. On May 23, 2009, a draft Environmental Impact Statement ("EIS") for the TMT was published; some of the Appellants submitted comments before issuance of the May 8, 2010 Final EIS.
TMT International Observatory, LLC ("TIO") was formed on May 6, 2014 as a nonprofit organization comprised of the Regents of the University of California, Caltech, the National Institutes of Natural Sciences of Japan, the National Astronomical Observatories of the Chinese Academy of Sciences, the Department of Science and Technology of India, and the National Research Council of Canada, and succeeded TMT Corporation as owner of the TMT project. TIO was formed so that the voting power and telescope observing time could vary amongst its members proportionate to their respective contributions to the TMT Project.
The TMT would be the first optical/infrared observatory of its size to integrate adaptive optics, which corrects for image distortion caused by the atmosphere, into its design. The proposed TMT project actually consists of four components, the TMT observatory within Area E ("TMT Observatory"), an access way from the Mauna Kea Access Road ("Access Way"), upgrades to existing transformers at the electrical substation near Hale Pohaku in the mid-level of Mauna Kea, and a headquarters in Hilo. With respect to construction of the TMT Observatory, the observatory dome, support building, and the area disturbed during construction would be about five acres ("the TMT Observatory site"). The issues on appeal in this case focus on the proposed TMT Observatory and Access Way.The ground surface of the proposed TMT Observatory is 600 feet below the summit ridge. The proposed TMT Observatory would have a total height of roughly 180 feet above that ground surface, with an exterior radius of 108 feet and a dome shutter 102.5 feet in diameter.
Conservation District Use Application ("CDUA") HA-3568 for the TMT was originally submitted on September 2, 2010. The BLNR initially granted a CDUP on April 12, 2013. In our December 2, 2015 opinion in Mauna Kea Anaina Hou v. Bd. of Land & Nat. Res., 136 Hawai‘i 376, 363 P.3d 224 (2015) (" Mauna Kea I"), we vacated the Circuit Court of the Third Circuit’s May 5, 2014 order affirming the BLNR’s issuance of the first CDUP. We held that the BLNR’s approval of a CDUP before conducting a contested case hearing violated the due process rights of parties with standing to assert Native Hawaiian traditional and customary rights. Mauna Kea I, 136 Hawai‘i at 390-91, 363 P.3d at 238-39. We also held that a state agency must perform its functions in a manner that fulfills the State’s affirmative obligations under the Hawai‘i Constitution. Mauna Kea I, 136 Hawai‘i at 414, 363 P.3d at 262 (Pollack, J., concurring, in which Wilson, J., joined, and McKenna, J., joined as to Part IV). We therefore ordered a remand to the BLNR for a contested case hearing before the Board or a new hearing officer. Mauna Kea I, 136 Hawai‘i at 399, 363 P.3d at 247.
On remand, the BLNR appointed a hearing officer, retired Third Circuit judge Riki May Amano ("Hearing Officer" or "Amano"), who conducted a contested case hearing over forty-four days, on the following dates in 2016 and 2017: October 20, 24-27, and 31; November 2 and 15-16; December 1-2, 5-6, 8, 12-13, 16, and 19- 20; January 3-5, 9-12, 19, 23-26, and 30-31; February 13-16, 21-23, and 27-28; and March 1-2. The Hearing Officer issued her "Proposed Findings of Fact, Conclusions of Law, and Decision and Order" on July 26, 2017.
After submission of exceptions to the proposed decision and responses to the exceptions and oral arguments, on September 27, 2017, the BLNR issued its 271-page Findings of Fact, Conclusions of Law and Decision and Order ("BLNR Decision and Order") containing 1070 Findings of Fact ("FOF" singular or "FOFs" plural) and 512 Conclusions of Law ("COL" singular or "COLs" plural).
Due to the length of the BLNR Decision and Order, many of the specific FOFs, COLs, and CDUP conditions referenced in this opinion are not quoted. The entire BLNR Decision and Order is available on-line at https://perma.cc/H49Z-XN7B.
Five of seven board members, BLNR Chairperson Case and members James A. Gomes, Thomas H. Oi, Samuel "Ohu" Gon III, and Christopher Yuen signed the BLNR Decision and Order to indicate agreement. Members Stanley H. Roehrig and Keith "Keone" Downing signed with the notation "I do not concur[.]"
Pursuant to Act 48 of 2016, direct appeals were filed to this court. III. Points of Error on Appeal
Act 48 of 2016, effective August 1, 2016, added Hawai‘i Revised Statutes § 183C-9 to make final decisions and orders from contested cases concerning conservation districts directly appealable to this court. 2016 Haw. Sess. Laws Act 48, §§ 2 & 14 at 76, 82.
In SCOT-17-0000777, the appellants are Petitioners-Appellants Mauna Kea Anaina Hou ("MKAH") and its President Kealoha Pisciotta, Clarence Kukauakahi Ching, Flores-Case ‘Ohana, Deborah J. Ward, Paul K. Neves, and KAHEA: The Hawaiian Environmental Alliance (collectively the "MKAH Appellants"). The MKAH Appellants’ previous appeal resulted in our December 2, 2015 opinion in Mauna Kea I. SCOT-17-0000811 was filed by Intervenor-Appellant Temple of Lono ("Appellant Temple of Lono" or "Temple"). SCOT-17-0000812 was filed by Intervenors-Appellants Mehana Kihoi, Joseph Kuali‘i Camara, Leina‘ala Sleightholm, Kalikolehua Kanaele, Tiffnie Kakalia, Brannon Kamahana Kealoha, Cindy Freitas, William Freitas ("Kihoi Appellants"), and Intervenor-Appellant Harry Fergerstrom ("Appellant Fergerstrom"). The appellees are the BLNR, the State of Hawai‘i Department of Land and Natural Resources ("DLNR"), the State of Hawai‘i (the "State"), and Suzanne D. Case ("Case"), in her official capacity as Chair of the BLNR (usually collectively referred to as the "BLNR"), and the University of Hawai‘i at Hilo ("UHH"). Intervenors-appellees are TMT International Observatory, LLC ("TIO") and Perpetuating Unique Educational Opportunities, Inc. ("PUEO"). A fourth appeal, SCOT-17-0000705, filed on October 10, 2017, by Intervenor-Appellant Dwight J. Vicente, was dismissed on March 15, 2018 based on a failure to file an opening brief after notice was provided.
The great majority of the BLNR’s FOFs and COLs are not challenged on appeal. The points of error that are alleged on appeal by the various Appellants are categorized and summarized as follows:
Various appellants raise various issues on appeal, some which are duplicated by other appellants and some of which are asserted by only one appellant. Appellants raising the various issues are sometimes identified.
A. Disqualification Issues
1. Whether the BLNR erred by refusing to disqualify Amano as the Hearing Officer based on her family membership in the ‘Imiloa Astronomy Center;
2. Whether the BLNR erred by refusing to disqualify Deputy Attorneys General who had advised the BLNR in Mauna Kea I from continuing to advise the Hearing Officer and the BLNR in the contested case hearing after remand;
3. Whether the BLNR erred by overruling objections to the participation of BLNR members Yuen and Gon in the contested case hearing after remand.
B. Native Hawaiian Rights Issues
1. Whether the BLNR fulfilled its duties under Article XII, Section 7 and Ka Pa‘akai o Ka ‘Aina v. Land Use Commission;
2. Whether the BLNR erred in concluding that the Hawai‘i Constitution does not protect contemporary native Hawaiian cultural practices;
3. Whether the TMT Project violates religious exercise rights of Native Hawaiians protected by federal statutes;
4. Whether the Hearing Officer should have allowed briefing and a hearing on a motion to disqualify UHH as applicant based on its alleged hostility toward the traditional Hawaiian faith;
5. Whether the Hearing Officer should have allowed briefing and a hearing on a motion to dismiss based on violation of the desecration statute of the Hawai‘i Penal Code;
6. Whether the Hearing Officer should have excluded challenges to the legal status of the State of Hawai‘i and its ownership of Mauna Kea as well as the existence of the Kingdom of Hawai‘i.
C. Public Trust and Land Use Issues
1. Whether the TMT Project violates Article XI, Section 1 of the Hawai‘i Constitution and public trust principles;
2. Whether conditions of Hawai‘i Administrative Rules ("HAR") § 13-5-30(c) (1994) for issuance of a CDUP were satisfied.
D. Other Procedural Issues
1. Whether the original CDUA should have been stricken and a new CDUA required;
2. What the nature of the proceeding was below, and whether there is an appropriate record on appeal;
3. Whether TIO and PUEO should have been admitted as parties;
4. Whether the Hearing Officer’s scheduling of presentations by the parties violated Appellants’ due process rights;
5. Whether the Hearing Officer improperly failed to issue final orders in a timely fashion;
6. Whether the Hearing Officer improperly failed to provide reasoned explanations for her orders;
7. Whether the Hearing Officer improperly failed to provide required rulings and explanations for thousands of proposed findings of fact;
8. Whether the entire proceeding was not legitimate.
IV. Standards of Review
The standards for reviewing each of the points of error alleged on appeal are set out in Hawai‘i Revised Statutes ("HRS") § 91–14(g) (2012 & Supp. 2016), "Judicial review of contested cases," which provides as follows:
(g) Upon review of the record the court may affirm the decision of the agency or remand the case with instructions for further proceedings; or it may reverse or modify the decision and order if the substantial rights of the petitioners may have been prejudiced because the administrative findings, conclusions, decisions, or orders are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority or jurisdiction of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
(6) Arbitrary, or capricious, or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
Under HRS § 91–14(g), conclusions of law are reviewable under subsections (1), (2), and (4); questions regarding procedural defects are reviewable under subsection (3); findings of fact are reviewable under subsection (5); and an agency’s exercise of discretion is reviewable under subsection (6). Save Diamond Head Waters LLC v. Hans Hedemann Surf, Inc., 121 Hawai‘i 16, 24–25, 211 P.3d 74, 82–83 (2009).
Pursuant to HRS § 91–14(g), an agency’s conclusions of law are reviewed de novo. United Pub. Workers, AFSCME, Local 646, AFL–CIO v. Hanneman, 106 Hawai‘i 359, 363, 105 P.3d 236, 240 (2005).
An agency’s exercise of discretion will not be overturned unless arbitrary, or capricious, or characterized by a clearly unwarranted exercise of discretion. Paul’s Elec. Serv. Inc. v. Befitel, 104 Hawai‘i 412, 417, 91 P.3d 494, 499 (2004) (citing HRS § 91–14(g)(6) ).
In the next section, we analyze each point of error based on the applicable standard of appellate review. We provide additional factual and procedural background information as appropriate.
Some points of error are addressed in footnotes.
V. Discussion of Points of Error on Appeal
A. Disqualification Issues
1. Whether the BLNR erred by refusing to disqualify Amano as the Hearing Officer based on her family membership in the ‘Imiloa Astronomy Center
a. Background
Appellants assert that the BLNR erred by refusing to disqualify Amano as the Hearing Officer based on her family membership in the ‘Imiloa Astronomy Center (" ‘Imiloa"). After our remand in Mauna Kea I, the BLNR delegated the conduct of the contested case hearing to a hearing officer, pursuant to HAR § 13-1-32(b) (2009), and through the procurement process of HRS § 103D-304 (2012). The BLNR appointed a committee of three, consisting of retired Hawai‘i Supreme Court Associate Justice James E. Duffy, Jr., Deputy Attorney General Stella Kam, and BLNR Member Christopher Yuen, to evaluate hearing officer applicants. The BLNR issued Minute Order No. 1, attaching Amano’s disclosure statement as Exhibit 1 and setting a deadline for any objections to her appointment.
Appellants objected to Amano’s selection, citing Mauna Kea I, 136 Hawai‘i at 389, 363 P.3d at 237 ("[J]ustice can perform its high function in the best way only if it satisfies the appearance of justice." (quoting Sifagaloa v. Bd. of Trs. of the Emps. Ret. Sys., 74 Haw. 181, 189, 840 P.2d 367, 371 (1992) ) (emphasis omitted). They argued Amano could not be impartial because she was a dues paying member of ‘Imiloa, which is a part of UHH. They pointed out that TIO is listed on the website as a corporate member of ‘Imiloa, and that ‘Imiloa had benefited and would benefit from the TMT Project, as it was among the recipients of over $100,000 in contributions to outreach activities already made by TIO, and, as stated in the Final EIS, the TMT Project "will work with ... ‘Imiloa to develop exhibits that reflect the nationally-recognized natural resources" of the area.
It is unclear how much ‘Imiloa received of the over $100,000, but according to the Final EIS, these amounts were contributed from 2008-10 and other recipients included the Akamai Intern program, the Waiakea High School Robotics program, the IfA Elementary School Robotics program, the Journey to the Universe program, Kona teachers’ workshops, a DOE mentoring program workshop, and intern employment.
Amano then filed a supplemental disclosure stating she had been unaware that ‘Imiloa was connected to UHH and that it had not crossed her mind that ‘Imiloa was or could be connected to the instant case. She further stated that her family membership to ‘Imiloa had been active since April 2008 with annual dues of $85, and it was set to expire and would not be renewed. She indicated she had visited ‘Imiloa five to six times since 2008 and had used the 10% restaurant and gift shop discount an average of three times per year. She also stated that when she and her husband joined ‘Imiloa, it seemed to them like a membership-based cultural organization like the Japanese Cultural Center of Hawai‘i and the Bishop Museum on O‘ahu.
Appellants filed supplemental objections additionally arguing that the membership reflected Amano’s personal and financial support of the astronomy mission of UHH, which includes development of the TMT Project. Appellants asserted that, at minimum, an appearance of a conflict or an appearance of impropriety existed, requiring disqualification.
Appellants also argued below and on appeal standards governing an arbitrator’s duties of disclosure under HRS Chapter 658A, which do not apply and are not further discussed.
In Minute Order No. 4, the BLNR denied the objections, ruling that the membership does not confer a right to participate in ‘Imiloa’s governance. The BLNR noted that in accordance with Sussel v. City & Cty. of Honolulu Civil Serv. Comm’n, 71 Haw. 101, 108, 784 P.2d 867, 871 (1989), administrative adjudicators are disqualified for an "appearance of impropriety," which is similar to the standard for the disqualification of judges. The BLNR noted that Hawai‘i Revised Code of Judicial Conduct ("HRCJC") Rule 2.11(a) (2014) requires disqualification of a judge if "the judge’s impartiality might reasonably be questioned." The BLNR reasoned that even if ‘Imiloa was classified as a party based on its affiliation with UHH, the Hearing Officer’s family membership did not create the fiduciary or managerial relationship between an adjudicator and party precluded by HRCJC Rule 2.11(a)(2)(A). The BLNR opined that no reasonable person would infer that the possible benefits from the membership would cause Amano not to be impartial. The BLNR concluded that the membership was a "de minimis" interest under HRCJC Rule 2.11(a)(2)(C) that did not rise to the level of an "appearance of impropriety." The BNLR characterized Amano’s membership as akin to a museum membership, not a membership in an advocacy group.
HRCJC Rule 2.11(a)(2)(A) and (C) (2014) provide:
Subject to the rule of necessity, a judge shall disqualify or recuse himself or herself in any proceeding in which the judge’s impartiality* might reasonably be questioned, including but not limited to the following circumstances:
....
(2) The judge knows* that the judge, the judge’s spouse or domestic partner,* or a person within the third degree of relationship* to either of them, or the spouse or domestic partner* of such a person is:
(A) a party to the proceeding, or an officer, director, general partner, managing member, or trustee of a party;
....
(C) a person who has more than a de minimis* interest that could be substantially affected by the proceeding....
The starred terms are defined as follows:
* "Impartiality" means "absence of bias or prejudice in favor of, or against, particular parties or classes of parties, as well as maintenance of an open mind in considering issues that come or may come before a judge." "Knows" means "actual knowledge of the fact in question. A person’s knowledge may be inferred from circumstances." "Third degree of relationship" "includes the following persons related to the judge by blood or marriage: great-grandparent, grandparent, parent, uncle, aunt, brother, sister, child, grandchild, great-grandchild, nephew, and niece." "De minimis" in the context of interests pertaining to disqualification of a judge, means "an insignificant interest that could not raise a reasonable question regarding the judge’s impartiality." "Terminology," HRCJC.
See supra note 10.
The BLNR also concluded that the membership "does not remotely resemble the prejudgment found objectionable in ... [ Mauna Kea I ]" where the BLNR had voted on the merits of the CDUA before holding the contested case hearing. It ruled that Amano’s membership did not show personal and financial support of the astronomy mission at UHH. It also ruled that exposure to ‘Imiloa’s exhibits about astronomy on Mauna Kea did not imply prejudgment, and that the Hearing Officer’s entitlement to a "presumption of honesty and integrity" remained intact. The BLNR also accepted Amano’s representation and found that Amano did not know ‘Imiloa was part of UHH or that it had any connection with the CDUA.
The BLNR also discussed whether it should exercise its discretion to replace the Hearing Officer despite a lack of grounds for disqualification. It declined to do so because Amano had been selected as the most qualified applicant by the committee.
Appellants filed a motion for reconsideration. Both UHH and TIO responded that the motion should be denied on the merits, but to preemptively eliminate any basis for further delays and appeals, they requested that an alternative hearing officer be appointed. The BLNR denied the motion, stating it would be nearly impossible to find a hearing officer who subjectively appears fair to every possible person interested in the TMT Project. The BLNR also noted that the Appellants had not objected to Amano’s disclosed involvement in mediating employment disputes involving UHH, which arguably demonstrated more substantive connections to UHH.
Appellants later filed a renewed motion to disqualify, asserting Amano should be disqualified because Amano (1) had not ruled on Appellants’ motions to disqualify the BLNR’s and the Hearing Officer’s counsel and to strike the CDUA and/or for summary judgment, (2) allegedly disregarded cultural protocol in accessing Mauna Kea during the site visit, (3) was escorted to the restroom by armed and uniformed DLNR Enforcement ("DOCARE") officers who stood guard at hearings, showing her fear of the parties, (4) had allegedly ridden in a vehicle with a UHH employee for the site visit, (5) had a connection to Deputy Attorney General Harvey Henderson, and (6) did not require UHH to disclose witness statements, exhibits, and position statements before the Appellants’ deadlines.
The renewed motion was also denied by the BLNR. With respect to the new arguments, the BLNR ruled: (1) the lack of a ruling on two motions, out of more than fifty filed by the parties, did not evidence an appearance of impropriety; (2) not following Appellants’ proposed site visit route also did not evidence an appearance of impropriety; (3) the presence of DOCARE officers did not evidence bias, as the officers protect the safety of everyone present; (4) Amano had been driven on the site visit by a DOCARE officer, not a UHH employee; (5) Amano’s connection with Henderson did not evidence bias, as her connection was limited to having attended law school with his wife, who was also a member of the Board of Governors of Maximum Legal Services Corporation, for which Amano served as Executive Director; and (6) there was no evidence of bias based on Amano’s setting of deadlines.
b. Analysis
On appeal, the parties repeat the arguments they made below. Preliminarily, Appellants’ additional argument, that UHH and TIO should be judicially estopped from arguing that the BLNR did not err in denying disqualification, lacks merit. The issue on appeal is whether Amano should have been disqualified. Judicial estoppel prohibits parties from taking inconsistent positions. Lee v. Puamana Cmty. Ass’n, 109 Hawai‘i 561, 575–76, 128 P.3d 874, 888–89 (2006). UHH and TIO have consistently argued that there was no basis for disqualification; thus, judicial estoppel does not apply.
Turning to the merits, we review the alleged due process violation de novo, but we are bound by relevant factual findings made by the BLNR unless they are clearly erroneous. The BLNR found that Amano did not know ‘Imiloa was part of UHH or that it had any connection with the TMT application, that ‘Imiloa membership is akin to a museum membership and is not a membership in an advocacy group, that the membership does not confer a right to participate in ‘Imiloa’s governance, that the membership did not show personal and financial support of the astronomy mission at UHH, and that exposure to ‘Imiloa’s exhibits about astronomy on Mauna Kea did not imply prejudgment. These findings are not clearly erroneous. The BLNR also ruled that no reasonable person would infer that the possible benefits from the membership would cause Amano not to be impartial. These rulings of law are not wrong.
With respect to the applicable law, the BLNR properly concluded that "an administrative adjudicator should [not] be allowed to sit with impunity in a case where the circumstances fairly give rise to an appearance of impropriety and reasonably cast suspicion on [the adjudicator’s] impartiality." Sussel, 71 Haw. at 109, 784 P.2d at 871 (citation omitted), and that administrative adjudicators are held to the same standard as judges. The BLNR also concluded that, like judges, administrators serving as adjudicators are presumed to be unbiased. Sifagaloa, 74 Haw. at 192, 840 P.2d at 372, and that this presumption is rebutted only by a showing of a disqualifying interest, either pecuniary or institutional, or both. See id.
The BLNR applied the correct test for impropriety: whether a reasonable person knowing all the facts would doubt the impartiality of Amano, or whether the circumstances would cause a reasonable person to question Amano’s impartiality. We agree that the circumstances of this case did not rebut the presumption that Amano would be capable of impartially performing her duties. Amano’s connection to ‘Imiloa was too attenuated, as her connection was not shown to be anything other than a membership, no different than a membership of a member of the general public. The membership did not represent an unusual commitment to ‘Imiloa, different from what any other member might have. Membership alone does not lead to a conclusion that a member supports a mission to build the TMT, even assuming that this is ‘Imiloa’s mission. No disqualifying interest was shown and the circumstances did not fairly give rise to an appearance of impropriety and reasonably cast suspicion on her impartiality. For the reasons given by the BLNR, the bases for disqualification asserted in the renewed motion for reconsideration are also without merit. Therefore, there was no error in the denial of the requests to disqualify the Hearing Officer.
2. Whether the BLNR erred by refusing to disqualify Deputy Attorneys General who had advised the BLNR in Mauna Kea I from continuing to advise the Hearing Officer and the BLNR in the contested case hearing after remand.
MKAH Appellants assert that the BLNR erred by denying their motion to disqualify Deputy Attorneys General Julie China and William Wynhoff (collectively "the DAGs"), who had represented the BLNR in the first appeal leading to Mauna Kea I. Appellants argue these DAGs should have been disqualified based on White v. Bd. of Educ., 54 Haw. 10, 501 P.2d 358 (1972). They also assert the DAGs should have been disqualified because they conferred with UHH and TIO attorneys during the pendency of the appeal in Mauna Kea I regarding arrests and prosecution of individuals on Mauna Kea.
In White, a public school teacher requested a hearing due to a proposal to terminate her employment. 54 Haw. at 11, 501 P.2d at 360. After the hearing officer had prepared proposed findings of fact and conclusions of law, the deputy attorney general who had represented the Superintendent of Education in the adversary hearing against the teacher advised the Board of Education as decision maker with respect to the hearing officer’s findings and conclusions. 54 Haw. at 16, 501 P.2d at 363. We held that a deputy attorney general who had acted as counsel for the Superintendent against the teacher in the adversary hearing should not have been consulted by the Board in its decision making capacity. Id.
White is distinguishable. With respect to the issues in this case, the DAGs advised and represented the DLNR, BLNR, and the Hearing Officer in their adjudicative capacities and not as adversaries of the Appellants. Appellants also assert the DAGs should also have been disqualified because they conferred with counsel for UHH and TIO regarding the arrests and prosecution of protesters on Mauna Kea. As argued by the BLNR, however, it is the DAGs’ duty "to administer and render legal services to ... the State departments and offices as the governor may direct." State v. Klattenhoff, 71 Hawai‘i 598, 602, 801 P.2d 548, 550 (1990), abrogated on other grounds by State v. Walton, 133 Hawai‘i 66, 324 P.3d 876 (2014). It is also their duty to "give advice and counsel to the heads of departments ... and other public officers, in all matters connected with their public duties, and otherwise aid and assist them in every way requisite to enable them to perform their duties faithfully." HRS § 28-4 (1993). The DAGs had a duty to advise the BLNR with respect to legal issues regarding possible conferral of trespassing charges to county prosecutors. These legal issues differ from the issues involved in this appeal as to whether a CDUP should have been granted.
The Intermediate Court of Appeals made a similar distinction in Kilakila ‘O Haleakala v. Bd. of Land & Nat. Res., No. CAAP-13-3065, 2014 WL 5326757 (App. Oct. 17, 2014) (mem.), in affirming the BLNR’s denial of Kilakila’s motion to disqualify the deputy attorney general who had represented the BLNR in an adjudicative capacity in both proceedings. Kilakila, mem. op. at 38–39, 2014 WL 5326757, at *25.
Therefore, even if the DAGs represented the BLNR in an adversarial position as to whether to confer trespassing charges to county prosecutors regarding Mauna Kea protests, the adversarial representation was not with respect to whether a CDUP should have been authorized after the remand. Indeed, as the BLNR points out, if the BLNR had determined that no CDUP should issue, the DAGs would have been responsible for defending that decision.
The DAGs have always been required to assist the BLNR in a manner to enable the Board to perform its duties faithfully. Their duty never changed, and they have consistently represented the interests of the BLNR. This differs from White, in which the deputy attorney general first represented the Superintendent, then the BOE, who could have had differing interests.
For all of these reasons, the BLNR did not err in denying Appellants’ motion to disqualify based on White.
3. Whether the BLNR erred by overruling objections to the participation of BLNR members Yuen and Gon in the contested case hearing after remand.
Appellants argue that the BLNR committed a due process violation by overruling their objections to the participation of BLNR members Christopher Yuen ("Yuen") and Samuel Gon ("Gon") in the proceedings after remand. Due process requires disqualification where "circumstances fairly give rise to an appearance of impropriety and reasonably cast suspicion on the adjudicator’s impartiality." Kilakila ‘O Haleakala v. Bd. of Land & Nat. Res., 138 Hawai‘i 383, 425, 382 P.3d 195, 237 (2016) (" Kilakila III") (Pollack, J., dissenting) (citations omitted). The test for prejudgment in an agency context is "whether a disinterested observer may conclude that (the agency) has in some measure adjudged the facts as well as the law ... in advance of hearing the matter." Mauna Kea I, 136 Hawai‘i at 395, 363 P.3d 243 (citation omitted). As noted earlier, administrative adjudicators are, however, entitled to a "presumption of honesty and integrity." Sifagaloa, 74 Haw. at 193, 840 P.2d at 372.
a. Yuen’s participation
Soon after the Hearing Officer was appointed, Appellants filed objections asserting Yuen should be disqualified. By Minute Order No. 9 dated June 3, 2016, the BLNR overruled these objections. On appeal, Appellants reassert their arguments below regarding Yuen’s participation. Appellants point to a 1998 interview of Yuen published online by environment-hawaii.org in which Yuen made statements regarding Mauna Kea, which Appellants characterize as "strong and favorable opinions and positions of future telescope development." Specifically, Appellants take issue with the following statements made by Yuen during the interview:
For all the criticism and the auditors [sic] report—I just don’t see a lot of harm that’s been done to those resources [historic sites, archaeological sites, bug communities, cleanliness of the area, public safety issues, some culturally significant areas] by the astronomy facilities being put up there and with all this activity in the last 20—25 years.
....
The auditor’s report was critical. There were some delays. The big archaeological study was late, certainly the arthropod study was delayed. But if you try to identify what has gone wrong—has something been destroyed or lost? Again, apart from just the thing that you have all those domes sticking up there, it’s been done in a pretty responsible way.
There are people that don’t like having all those buildings up there—which is a valid point of view, but the basic decision was made almost 20 years ago. And, honestly, I don’t see what difference it would make to have a few more telescopes up there as long as you site them properly. It doesn’t make a qualitative change in the mountaintop if you do that.
The MKAH Appellants focus on two lines to assert Yuen had prejudged the CDUA: "[H]onestly, I don’t see what difference it would make to have a few more telescopes up there as long as you site them properly. It doesn’t make a qualitative change in the mountaintop if you do that."
Yuen’s comments, however, also contained criticism of telescope projects. The quotation above contains his comments delays in completing studies. He also criticized the manner in which the Subaru telescope had been constructed, which involved the grading out of pu‘u and potential destruction of bug habitats. He also stated that Mauna Kea "is a very important, prominent place" and that individuals who "don’t like having all those buildings up there" had a "valid point of view." He opined that, unfortunately, the State had already irrevocably changed the landscape nearly twenty years ago when it first allowed telescopes. He also stated that any future telescope project would need, at minimum, to be "site[d] ... properly," meet the demands of good stewardship, and leave intact habitat and archaeological and cultural sites.
Thus, Yuen’s comments, made in 1998, did not indicate he would approve all future telescope applications. In the context of the entirety of Yuen’s comments, the BLNR did not err in ruling that the circumstances did not fairly give rise to an appearance of impropriety and did not reasonably cast suspicion on Yuen’s impartiality. See Kilakila III, 138 Hawai‘i at 425, 382 P.3d at 237 (Pollack, J., dissenting).
Appellants also argue that Yuen should have been disqualified because he had been a member of the panel that selected Amano and had voted on Appellants’ motions to disqualify her. There is no due process violation based on this assertion.
To the extent Appellants also argue a statutory basis for disqualification, Appellees correctly respond that Yuen was appointed to the BLNR pursuant to HRS § 171-4(b) (1993 & Supp. 2005), which requires that the BLNR have at least one member "with a background in conservation and natural resources." HRS § 84-14 (1993 & Supp. 2012) then provides:
A person whose position on a board, commission, or committee is mandated by statute, resolution, or executive order to have particular qualifications shall only be prohibited from taking official action that directly and specifically affects a business or undertaking in which the person has a substantial financial interest; provided that the substantial financial interest is related to the member’s particular qualifications.
(Emphasis added). There was no allegation or evidence that Yuen has a substantial financial interest in the TMT Project.
Thus, Yuen’s disqualification was not required by due process, and the BLNR did not err by denying Appellants’ request to disqualify him.
b. Gon’s participation
Appellants first objected to Gon’s participation during closing arguments before the BLNR. Appellants reiterate their argument below that Gon should have been disqualified because he had previously voted and signed off on the original CDUP vacated by Mauna Kea I. During their appeal of the first CDUP, however, Appellants represented they were not seeking recusal of any member of the BLNR. See Mauna Kea I, 136 Hawai‘i at 398, 363 P.3d at 246. In addition, Mauna Kea I remanded the case for a second contested case hearing "before the Board or a new hearing officer," not a new Board. Mauna Kea I, 136 Hawai‘i at 399, 363 P.3d at 247. Moreover, there is no legal authority requiring a Board member to be disqualified because he had approved a decision that is later vacated and remanded. If such authority existed, no vacated decision could ever be remanded to the same board or lower court judge.
Like Yuen, Gon was appointed to the BLNR as a member with "particular qualifications," in Gon’s case pursuant to HRS § 171-4(c) (1993 & Supp. 2014) as a member "with demonstrated expertise in native Hawaiian traditional and customary practices." Like Yuen, Gon is statutorily prohibited from taking official action only where it "directly and specifically affects a business or undertaking in which [he] has a substantial financial interest." HRS § 84-14(a). See supra note 13. There is also no allegation or evidence that Gon has a substantial financial interest in the TMT Project.
Thus, Gon’s disqualification was not required by due process, and the BLNR did not err by denying Appellants’ request to disqualify him.
B. Native Hawaiian Rights Issues
1. Whether the BLNR fulfilled its duties under Article XII, Section 7 and Ka Pa‘akai o Ka ‘Aina v. Land Use Commission
The protection of Native Hawaiian traditional and customary rights is enshrined in Article XII, section 7 of the Hawai‘i Constitution, which provides as follows:
The State reaffirms and shall protect all rights, customarily and traditionally exercised for subsistence, cultural and religious purposes and possessed by ahupua‘a tenants who are descendants of native Hawaiians who inhabited the Hawaiian Islands prior to 1778, subject to the right of the State to regulate such rights.
These rights of Native Hawaiians who inhabited the Hawaiian Islands before 1778 are property interests protected by the due process clause of Article I, section 5 of the Hawai‘i Constitution. Flores v. Bd. of Land and Nat. Res., 143 Hawai‘i 114, 126, 424 P.3d 469, 481 (2018) (citing Mauna Kea I, 136 Hawai‘i at 390, 363 P.3d at 238 ).
In Public Access Shoreline Hawaii v. Hawai‘i Cty. Planning Comm’n ("PASH"), we reaffirmed the State’s obligation to protect the reasonable exercise of customary and traditionally exercised rights of Hawaiians to the extent feasible. 79 Hawai‘i 425, 450 n.43, 903 P.2d 1246, 1271 n.43 (1995). Then in Ka Pa‘akai o Ka ‘Aina v. Land Use Comm’n, we set out an analytical framework "to help ensure the enforcement of traditional and customary Native Hawaiian rights while reasonably accommodating competing private development interests." 94 Hawai‘i 31, 35, 7 P.3d 1068, 1072 (2000). We held that in order to fulfill its duty to preserve and protect customary and traditional Native Hawaiian rights to the extent feasible, as required by Article XII, Section 7 of the Hawai‘i Constitution, an administrative agency must, at minimum, make specific findings of fact and conclusions of law as to the following: (1) the identity and scope of valued cultural, historical, or natural resources in the relevant area, including the extent to which traditional and customary Native Hawaiian rights are exercised in the area; (2) the extent to which those resources—including traditional and customary Native Hawaiian rights—will be affected or impaired by the proposed action; and (3) the feasible action, if any, to be taken by the agency to reasonably protect Native Hawaiian rights if they are found to exist. Ka Pa‘akai, 94 Hawai‘i at 47, 7 P.3d at 1084. MKAH and Kihoi Appellants assert that the BLNR failed to meet these obligations.
The Ka Pa‘akai analysis is designed to effectuate Article XII, Section 7 and protect rights traditionally and customarily exercised by Native Hawaiians for subsistence, cultural and religious purposes. The first step of the analysis required the BLNR to make specific findings and conclusions about the identity and scope of valued cultural, historical, or natural resources in the relevant area, including the extent to which traditional and customary Native Hawaiian rights are exercised in the area. The BLNR made numerous findings of fact and conclusions of law in this regard.
See FOFs 175-225 regarding HAR § 13-5-30(4) on pp. 219-25, 531-567 on pp. 91 to 98 regarding biologic resources, 568-675 on pp. 98 to 116 regarding archaeological and historic resources, FOFs 676-839 on pp. 116-55 regarding cultural resources and practices, FOFs 840-860 on pp. 155-58 regarding visual and aesthetic issues, FOFs 861-888 on pp. 158-63 regarding hydrology and water resources, and COLs 365-437 on pp. 244-54.
The issues on appeal relate to Native Hawaiian cultural resources, and we therefore focus our discussion on these issues. In addition to testimonial evidence, in reaching its findings, the BLNR had available numerous recent research studies, plans, and impact assessments documenting cultural resources on Mauna Kea, including Native Hawaiian traditional and customary practices.
The Kihoi Appellants allege in Point of Error B(2) that the BLNR erred by stating that Article XII, Section 7 does not protect contemporary Native Hawaiian cultural practices. The record reflects, however, that the BLNR appropriately took into account contemporary (as well as customary and traditional) Native Hawaiian cultural practices, finding and concluding that none were taking place within the TMT Project site or its immediate vicinity, aside from the recent construction of ahu to protest the TMT Project itself, which was not found to be a reasonable exercise of cultural rights. Further, although the BLNR defined the "relevant area" in its Ka Pa‘akai analysis as the TMT Observatory site and Access Way, the Board’s findings also identified and considered the effect of the project upon cultural practices in the vicinity of the "relevant area" and in other areas of Mauna Kea, including the summit region, as Ka Pa‘akai requires. See 94 Hawai‘i at 49, 7 P.3d at 1086 (faulting the agency for failing to address "possible native Hawaiian rights or cultural resources outside [the area at issue]").
In summary, the BLNR found that the majority of Native Hawaiian cultural practitioners on Mauna Kea conduct their practices at the summit of Mauna Kea (Pu‘u Wekiu), Lake Waiau, Pu‘u Lilinoe, or Kukahau‘ula. Cultural practices at Mauna Kea include solstice and equinox observations on Pu‘u Wekiu, burial blessings, depositing of piko (umbilical cord) near Lake Waiau as well as collection of its water for use in healing and ritual practices, the giving of offerings and prayers at the ahu lele (sacrificial altar or stand), behind the visitor center adjacent to Hale Pohaku, monitoring or observing the adze quarry, or observing stars, constellations, and the heavens.
The BLNR found no evidence, however, of Native Hawaiian cultural resources, including traditional and customary practices, within the TMT Observatory site area and the Access Way, which it characterized as the relevant area. There was no physical evidence that the TMT Observatory site was used for storing piko, iwi (bones of the dead), placenta or other artifacts. There was no evidence of ahu (shrine or altar), lele (sacrificial altar), or other historic properties therein. There was also no evidence of mele (song, anthem, or chant) or hula being performed in the area. After extensive surveying, no archaeological or historic sites or burials were found in any of the TMT Observatory site or Access Way areas.
The BLNR also analyzed Native Hawaiian cultural resources in the vicinity of the TMT Observatory and the Access Way. Native Hawaiians had erected ahu in the general vicinity of the TMT Observatory site. The closest, consisting of a single upright stone and several support stones, is 225 feet away, another is 1300 feet away, and a third is 1600 feet away. The BLNR concluded that the two ahu built on the Access Way in 2015 as protests against the TMT did not constitute a traditional and customary right or practice, and in any event did not meet PASH’s requirement of reasonableness. PASH, 79 Hawai‘i at 447, 903 P.2d at 1268.
The BLNR conducted a thorough analysis as required by the first step of the Ka Pa‘akai analysis. The BLNR found no Native Hawaiian cultural resources or traditional or customary practices within the TMT Observatory site and Access Way areas. It correctly concluded that the two ahu constructed on the TMT Access Way in 2015 as protests against TMT are not protected as Native Hawaiian traditional or customary rights.The second step of the Ka Pa‘akai analysis required the BLNR to make findings regarding the extent to which cultural resources—including traditional and customary Native Hawaiian rights—will be affected or impaired by the proposed action. The BLNR found that the TMT Project will not adversely impact cultural resources, whether in the relevant area of the TMT Observatory site and Access Way, or in other areas of Mauna Kea. If the three ahu in the vicinity of the TMT Observatory site are within the relevant area, the BLNR found that the TMT would not affect them. Also, if the summit is considered to be within the relevant area, the BLNR found that the TMT Observatory will not be visible from Lake Waiau, Pu‘u Lilinoe, or Kukahau‘ula, which are culturally sensitive areas of the summit of Mauna Kea, and that the TMT would not impact the other cultural practices discussed above. The BLNR also found that since 2000, cultural and/or spiritual practices have been occurring while astronomy facilities have existed, and that those activities would not be prevented by the TMT Observatory, which would be located 600 feet below the summit ridge.
The third Ka Pa‘akai requirement requires findings regarding the feasible action, if any, to be taken to reasonably protect Native Hawaiian rights if they are found to exist. Native Hawaiian rights were not found to have been exercised in the relevant area, so the third requirement was not required to be addressed. In any event, the BLNR discussed measures that had been taken to avoid impact on Native Hawaiian rights and practices in the Mauna Kea summit area and imposed special conditions to avoid impacts on those practices.
FOF 747 states:
The University and TIO have established measures to avoid and minimize direct and indirect impacts on cultural practices, including but not limited to the following:
(1) selecting a site off of the Kukahau‘ula summit and away from known historic and traditional cultural properties and cultural resources;
(2) selecting a site that minimizes the impact of the TMT Project on viewplanes;
(3) complying with all applicable provisions of the CMP and sub-plans;
(4) engaging in direct and regular consultation with Kahu Ku Mauna, with the broader Hawai‘i Island community, and with cultural practitioners on various issues;
(5) establishing an outreach office to engage with the larger community;
(6) developing and implementing a Cultural and Natural Resources Training Program for all TMT staff and construction workers; and
(7) minimizing TMT Observatory operations (up to 4 days per year) to accommodate cultural activities on culturally sensitive days of the year.
Special Conditions 30, 34, and 36 provide as follows:
30. Should historic remains such as artifacts, burials or concentration of charcoal be encountered during construction activities, work shall cease immediately in the vicinity of the find, and the find shall be protected from further damage. The contractor shall immediately contact the State Historic Preservation Division ... which will assess the significance of the find and recommend an appropriate mitigation measure, if necessary; the Applicant will also notify the Office of Hawaiian Affairs at the same time;
....
34. Daytime activities at TMT will be minimized on up to four days per year, as identified by Kahu Ku Mauna;
....
36. UHH shall allow reasonable access to the area established under Condition 35 for the exercise of any native Hawaiian traditional and customary practices to the extent feasible, reasonable, and safe. The allocation of this area shall be in addition to all other cultural and access rights of native Hawaiians to other areas of Mauna Kea as provided by law or by other conditions set forth herein[.]
The MKAH Appellants also challenge the following two conditions imposed by the BLNR for issuance of the CDUP, alleging that they demonstrate that "preservation and protection of native Hawaiian rights are not being addressed before the land is reclassified," as Ka Pa‘akai requires, and that the BLNR improperly delegated its duty to protect and preserve Native Hawaiian rights:
35. UHH shall consult with the Kahu Ku Mauna Council and cultural practitioners to the extent feasible to plan for, and establish, an appropriate area on Mauna Kea, within the MKSR, to be used by native Hawaiians for religious and cultural purposes; provided that this condition shall not affect the timing of TMT construction or operation.
....
41. Kahu Ku Mauna shall review policies concerning the construction and retention of personal or group shrines such as ‘ahu, and recommend policies to OMKM and/or the BLNR as appropriate, within 18 months....
This "improper delegation" argument stems from our holding in Ka Pa‘akai that an agency cannot delegate its duties to a developer. Ka Pa‘akai, 94 Hawai‘i at 50-51, 7 P.3d at 1087-88. Again, it was not necessary to address the third Ka Pa‘akai requirement. In addition, although at first blush conditions 35 and 41 may appear to be delegations, they are not; they are outside and in addition to Ka Pa‘akai requirements, and were imposed to ensure that Native Hawaiian practices in the Mauna Kea area will continue to be protected.
Thus, the BLNR discharged its Ka Pa‘akai duties.
2. Whether the TMT Project violates religious exercise rights of Native Hawaiians protected by federal statutes.
Kihoi Appellants assert that the BLNR erred by not addressing the substantial burden and impact the TMT would have on their rights under the Free Exercise Clause of the First Amendment to the United States Constitution. The BLNR Decision and Order, however, describes each of the Kihoi Appellants, then addresses each of their testimonies, their witnesses, and arguments. The Kihoi Appellants also erroneously assert that the testimony of Appellant Kanaele was never addressed, as his testimony was addressed in BLNR Decision and Order FOFs 21, 250, 794, and 886.
Kihoi Appellants also cite to The Religious Freedom Restoration Act, 42 U.S.C. §§ 2000b et seq. ("RFRA"), which they allege requires application of a strict scrutiny standard when determining whether the Free Exercise Clause has been violated. In State v. Sunderland, 115 Hawai‘i 396, 403, 168 P.3d 526, 533 (2007), however, we "already [took] note of the fact that the United States Supreme Court, in [ City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997) ], invalidated RFRA insofar as it ‘exceeded the enumerated powers of Congress and was, therefore, unconstitutional.’ ... As a result, RFRA is inoperative as to the individual states." Thus, RFRA applies only to the federal government, and does not apply to the TMT Project. Sunderland, 115 Hawai‘i at 403 n.9, 168 P.3d at 533 n.9.
Kihoi Appellants also argue that the land use provisions of the "Religious Land Use and Institutionalized Persons Act of 2000" ("RLUIPA"), 42 U.S.C. §§ 2000cc, etseq., protect individuals, houses of worship, and other religious institutions from discrimination in zoning and landmarking laws. Kihoi Appellants did not raise any argument under that statute during the contested case proceeding. In any event, as held by the Ninth Circuit Court of Appeals in Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1077 (9th Cir. 2008), RLUIPA "applies only to government land-use regulations of private land—such as zoning laws—not to the government’s management of its own land."
Therefore, this point of error is without merit.
3. Whether the Hearing Officer should have allowed briefing and a hearing on a motion to dismiss based on a request to disqualify UHH as applicant based on its alleged hostility toward the traditional Hawaiian faith.
Appellant Temple of Lono alleges that the Hearing Officer failed to allow briefing and a hearing on its attempts to have UHH disqualified as the applicant for the CDUA based on statements UHH made in a pre-hearing memorandum. The issue arises out of statements contained in UHH’s August 1, 2016 memorandum in opposition to Appellant Temple of Lono’s motion before the Hearing Officer seeking summary judgment on two claims regarding its religious practices, that (1) "the summit of Mauna a Wakea is a sacred site of special significance in the traditional Hawaiian faith" and that (2) "the traditional Hawaiian faith is still practiced."The Temple’s opening brief does not quote the allegedly offending language, but asserts that it is in a section entitled "Policy Considerations for Motion," in which UHH included the following statements:
The problem with fundamentalism in religion—any religion —is its intolerance and inability to compromise. Fundamentalist religion when confronted with a conflict between cooperation and conformity to doctrine invariably chooses the latter, regardless of the harm it brings to the society of which it is a part. The Temple wants a religious servitude over all of Mauna Kea, for the purpose of advancing its own religious agenda.
The Temple’s religious fundamentalism calls into play the tension between the establishment clause and the free exercise clause. The Temple wants full expansion of the free exercise clause regarding Mauna Kea.... In short, the Temple cannot use this proceeding to obtain a religious servitude over Mauna Kea, as part of advancing the Temple’s fundamentalist agenda.
Appellant Temple of Lono challenged this language as an ad hominem attack. The Hearing Officer denied various attempts to have UHH disqualified as the CDUA applicant based on this language in its memorandum.
Black’s Law Dictionary 48 (10th ed. 2014) defines "ad hominem" as "[a]ppealing to personal prejudices rather than to reason; attacking an opponent’s character, esp. in lieu of a rational response to the opponent’s stand or statement...."
UHH argues that the offending language was not an attack on Appellant Temple of Lono, but rather was a response to the Temple’s argument that because Mauna Kea is viewed as sacred and is of special significance to its faith, the TMT Project could not be constructed there. UHH indicates that while it believes Mauna Kea could accommodate both the TMT Project and traditional Native Hawaiian religion, the Temple rejects that sharing of Mauna Kea. It asserts that the language in question argued that such an absolutist position amounted to seeking a religious servitude over the mountain, which would itself run afoul of the establishment clauses of both the federal and state constitutions.
Despite UHH’s reasoning, the tenor of the language in its memorandum was unnecessary. Neither the Hearing Officer nor the BLNR were required to disqualify UHH as the CDUA applicant based on this language, and this argument is without merit.
Appellant Temple of Lono also argued in Point of Error B(5) that the Hearing Officer should have allowed briefing and a hearing on a motion to dismiss based on violation of the desecration statute of the Hawai‘i Penal Code, HRS § 711-1107 (2014). The Hearing Officer considered the motion and properly denied it based on the grounds that: (1) the agency lacked jurisdiction to adjudicate alleged violations of the Penal Code; and (2) the Temple failed to carry its summary judgment motion burden. Thus, this point of error is without merit.
4. Whether the Hearing Officer should have excluded challenges to the legal status of the State of Hawai‘i and its ownership of Mauna Kea as well as the existence of the Kingdom of Hawai‘i.
Appellant Fergerstrom asserts that the summit of Mauna Kea, as well as the ahupua‘a of Ka‘ohe in the District of Hamakua are lands still held by the Hawaiian Kingdom. He alleges that the Hearing Officer wrongfully denied him his right to present expert testimony from Professor Williamson Chang of the University of Hawai‘i William S. Richardson School of Law. Professor Chang proposed to testify that the State of Hawai‘i does not exist as a matter of United States Constitutional law because annexation through a Joint Resolution of Congress rather than through a Treaty of Annexation was ineffective. The United States Supreme Court’s interpretations of the United States Constitution are, however, binding throughout the United States. As pointed out by Professor Jon M. Van Dyke in his book WHO OWNS THE CROWN LANDS OF HAWAI‘I, at page 212 note 86:
For a historical perspective, see Congress’s Joint Resolution to Acknowledge the 100th Anniversary of the January 17, 1893 Overthrow of the Kingdom of Hawai‘i signed into law by then-President Bill Clinton on November 23, 1993 as Public Law No. 103–150, 107 Stat. 1510 (1993), quoted in full in Office of Hawaiian Affairs v. Housing and Community Development Corp. of Hawai‘i, 117 Hawai‘i 174, 183-86, 177 P.3d 884, 893-96 (2008). For additional Native Hawaiian perspectives, see Volume 39, Number 2 (Summer 2017) of the University of Hawai‘i Law Review.
The U.S. Supreme Court gave tacit recognition to the legitimacy of the annexations of Texas and Hawai‘i by joint resolution, when it said in De Lima v. Bidwell, 182 U.S. 1, 196, 21 S.Ct. 743, 45 L.Ed. 1041 (1901), that "territory thus acquired [by conquest or treaty] is acquired as absolutely as if the annexation were made, as in the case of Texas and Hawaii, by an act of Congress." See also Texas v. White, 74 U.S. (7 Wall.) 700, 19 L.Ed. 227 (1868), stating that Texas had been properly admitted as a state in the United States.
In other words, like Hawai‘i, Texas was also admitted as a state through a joint resolution of Congress. The United States Supreme Court has thus indicated that the process by which Hawai‘i was incorporated into the United States was lawful and binding, and we are bound by this determination. In addition, as we stated in State v. Kaulia, "[W]e reaffirm that ‘[w]hatever may be said regarding the lawfulness’ of its origins, ‘the State of Hawai‘i ... is now a lawful government.’ " 128 Hawai‘i 479, 487, 291 P.3d 377 (2013) (citing State v. Fergerstrom, 106 Hawai‘i 43, 55, 101 P.3d 652, 664 (App. 2004) ).
The BLNR is bound by the United States Supreme Court’s and this court’s precedents regarding the legal status of the State of Hawai‘i. Therefore, the Hearing Officer did not err by excluding the proposed evidence.
C. Public Trust and Land Use Issues
1. Whether TMT Project violates Article XI, Section 1 of the Hawai‘i Constitution and public trust principles.
Article XI, Section 1 Hawai‘i Constitution provides as follows:
For the benefit of present and future generations, the State and its political subdivisions shall conserve and protect Hawaii’s natural beauty and all natural resources, including land, water, air, minerals and energy sources, and shall promote the development and utilization of these resources in a manner consistent with their conservation and in furtherance of the self-sufficiency of the State.
All public natural resources are held in trust by the State for the benefit of the people.
In In re Water use Permit Applications, 94 Hawai‘i 97, 9 P.3d 409 (2000) (" Waiahole I "), in ruling that under Article XI, Sections 1 and 7 and the sovereign reservation, water is a public trust resource, we stated that "[w]e need not define the full extent of article XI, section 1’s reference to ‘all public resources’ at this juncture." Waiahole I, 94 Hawai‘i at 133, 9 P.3d at 445. Since then, "[t]his court has never precisely demarcated the dimensions of the public trust doctrine as incorporated in Article XI, Section 1." See Mauna Kea I, 136 Hawai‘i at 404, 363 P.3d at 252 (Pollack, J., concurring).
The plain language of Article XI, Section 1 provides that all public natural resources, including land, are held in trust by the State for the benefit of the people. We therefore now hold that conservation district lands owned by the State, such as the lands in the summit area of Mauna Kea, are public resources held in trust for the benefit of the people pursuant to Article XI, Section 1. The plain language of Article XI, Section 1 further requires a balancing between the requirements of conservation and protection of public natural resources, on the one hand, and the development and utilization of these resources on the other in a manner consistent with their conservation. We have also stated that the balancing must be "consistent with ... conservation [of these resources] and in furtherance of the self-sufficiency of the State." Waiahole I, 94 Hawai‘i at 139, 9 P.3d at 451. We have also stated Article XI, Section 1, requires the state both to "protect" natural resources and to promote their "use and development," consistent with the conservation of the natural resources. Id. We have also indicated that any balancing between public and private purposes must begin with a presumption in favor of public use, access and enjoyment. Waiahole I, 94 Hawai‘i at 142, 9 P.3d at 454.
HRS § 183C-2 (2011) provides that the " ‘[c]onservation district’ means those lands within the various counties of the State bounded by the conservation district line, as established under provisions of Act 187, Session Laws of Hawaii 1961, and Act 205, Session Laws of Hawaii 1963, or future amendments thereto."
Other types of public lands (and whether or how public trust principles should apply to such lands) are not before us at this time.
We note that Appellants only assert a violation of public trust principles under Article XI, Section 1, and although Appellees raise arguments based on permissible uses of ceded lands pursuant to Section 5(f) of the Admission Act of 1959, Appellants have not alleged a violation of the ceded lands trust. Section 5(f) ceded lands trust purposes are "[1] the support of the public schools and [2] other public educational institutions, [3] the betterment of the conditions of native Hawaiians, as defined in the Hawaiian Homes Commission Act, 1920, as amended, [4] the development of farm and home ownership on as widespread a basis as possible for the making of public improvements, and [5] the provision of lands for public use." Office of Hawaiian Affairs v. State, 96 Hawai‘i 388, 390, 31 P.3d 901, 903 (2001).
Ceded lands are also subject to Article XII, Section 4 of the Hawai‘i Constitution, which provides that "[t]he lands granted to the State of Hawaii by Section 5(b) of the Admission Act and pursuant to Article XVI, Section 7, of the State Constitution, excluding therefrom lands defined as ‘available lands’ by Section 203 of the Hawaiian Homes Commission Act, 1920, as amended, shall be held by the State as a public trust for native Hawaiians and the general public." Article XVI, Section 7 in turn provides that "[a]ny trust provisions which the Congress shall impose, upon the admission of this State, in respect of the lands patented to the State by the United States or the proceeds and income therefrom, shall be complied with by appropriate legislation. Such legislation shall not diminish or limit the benefits of native Hawaiians under Section 4 of Article XII."
The BLNR also cites to Article X, Section 5 of the Hawai‘i Constitution, which creates the University and gives it title to all real property conveyed to it, to "be held in public trust for its purposes, to be administered and disposed of as provided by law."
These other constitutional provisions and effectuating legislation are not at issue in this case, but they may play a part in defining public trust principles under Article XI, Section 1 with regard to conservation district lands owned by the State. Therefore, with respect to the Article XI, Section 1 public trust as to conservation lands, we do not wholesale adopt our precedent setting out public trust principles as applied to the state water resources trust. See Waiahole I, 94 Hawai‘i at 133-44, 9 P.3d at 445-56, and its progeny. Rather the dimensions of this trust remain to be further demarcated.
In our de novo determination of whether these requirements of Article XI, Section 1 have been met, we consider relevant findings in the BLNR Decision and Order.
We do not address Justice Pollack’s suggested analytical framework for addressing whether an agency is in compliance with its public trust obligations because, as he states, the BLNR has fulfilled its public trust obligations in any event. See Section IV of the Opinion of Pollack, J., Concurring in Part and Concurring in Judgment.
With respect to the requirements of conservation and protection of public natural resources, the BLNR’s finding that the TMT Project will not cause substantial adverse impact to geologic sites is not challenged. The TMT Project does not involve the irrevocable transfer of public land to a private party. The TMT is to be decommissioned at the end of its anticipated 50 year useful life or at the end of the lease, whichever comes first, pursuant to the Decommissioning Plan, and the land must then be restored. The BLNR also imposed as conditions of the CDUP various measures that will help protect the land in the area, such as requiring compliance with all laws as well as representations made regarding measures designed to reduce the negative impact of the project, requiring funding of the re-naturalization of the closed access road on Pu‘u Poli‘ahu, and permanent decommissioning of three telescopes as soon as possible and two additional telescopes by December 31, 2033.
The current General Lease expires on December 31, 2033.
See the additional discussion in Section V(C)(2)(a) below regarding decommissioning, including funding for decommissioning.
With respect to the development and utilization of the land consistent with its conservation and in furtherance of the self-sufficiency of the State, with a presumption in favor of public use, access, and enjoyment, Appellants point out that in Waiahole I, we upheld the exercise of Native Hawaiian traditional and customary rights as a public trust purpose. Waiahole I, 94 Hawai‘i at 137, 9 P.3d at 449. Appellants assert that the use by Native Hawaiians of the land proposed to be used for TMT is a public use while use by TMT users is a private use.
As discussed earlier, however, there was no actual evidence of use of the TMT Observatory site and Access Way area by Native Hawaiian practitioners. Furthermore, in general, astronomy and Native Hawaiian uses on Mauna Kea have co-existed for many years and the TMT Project will not curtail or restrict Native Hawaiian uses. In addition, the TMT is an advanced world-class telescope designed to investigate and answer some of the most fundamental questions regarding our universe, including the formation of stars and galaxies after the Big Bang and how the universe evolved to its present form. Native Hawaiians will also be included in other direct benefits from the TMT. Use of the land by TMT will result in a substantial community benefits package, which has already provided over $2.5 million for grants and scholarships for STEM education benefitting Hawai‘i students. The package also includes an additional commitment to provide $1 million annually for this program. The TMT Project will also result in a workforce pipeline program that will lead to a pool of local workers trained in science, engineering, and technical positions available for employment in well paid occupations. TIO will pay sublease rent to the University, the first telescope developer on Mauna Kea to do so, which will be used for the management of Mauna Kea through the Mauna Kea Special Management Fund, administered by OMKM. Thus, use of the land by TMT is consistent with conservation and in furtherance of the self-sufficiency of the State.
We therefore hold that the TMT comports with Article XI, Section 1 public trust principles and that the BLNR met its duties as trustee under the Article XI, Section 1 public land trust through its Decision and Order.
We held in Mauna Kea I that an agency must perform its functions in a manner that fulfills the State’s affirmative obligations under the Hawai‘i constitution. Mauna Kea I, 136 Hawai‘i at 414, 363 P.3d at 262 (Pollack, J., concurring, in which Wilson, J., joined, and McKenna, J., joined as to Part IV). In addition, "[t]he duties imposed upon the state are the duties of a trustee and not simply the duties of a good business manager." Waiahole I, 94 Hawai‘i at 143, 9 P.3d at 455 (citation omitted). Therefore, in performing its duties, the role of an agency is not merely to be a passive actor or a neutral umpire, and its duties are not fulfilled simply by providing a level playing field for the parties. Mauna Kea I, 136 Hawai‘i at 414, 363 P.3d at 262 (Pollack, J., concurring, in which Wilson, J., joined, and McKenna, J., joined as to Part IV.)
FOF 360 states that "TIO has already received substantial funds and will undertake additional fundraising efforts once a decision has been made as to the project approval." Although the BLNR addressed funding of decommissioning after completion, it is unclear whether other than an agreement from TIO to perform, the BLNR has adequately ensured that buildings or equipment will not be left behind and the areas used by TMT will be restored in the event full funding is not obtained for completion of construction or insufficient funds for decommissioning are available. Its duties as trustee require that it do so. The BLNR has discretion under Special Condition 43 to impose "[o]ther terms and conditions" on the CDUP. Therefore, the BLNR should ensure that the areas used by TMT will be restored to their natural states at no cost to the State, whether through requiring an appropriate performance bond or through imposing funding and/or other requirements.
2. Whether the conditions of HAR § 13-5-30(c) for issuance of a CDUP were satisfied.
Pursuant to HAR § 13-5-24(c)(4) (1994), "astronomy facilities under a management plan approved simultaneously with the [Board] permit" is a permissible land use in the resource subzone, within which the MKSR is situated. Before granting a CDUP for any proposed land use, however, the BLNR must consider the eight criteria of HAR § 13-5-30(c) in evaluating the merits of the specific proposed use. HAR § 13-5-30(c) provides:
(c) In evaluating the merits of a proposed land use, the department or board shall apply the following criteria:
(1) The proposed land use is consistent with the purpose of the conservation district;
(2) The proposed land use is consistent with the objectives of the subzone of the land on which the use will occur;
(3) The proposed land use complies with provisions and guidelines contained in chapter 205A, HRS, entitled "Coastal Zone Management", where applicable;
(4) The proposed land use will not cause substantial adverse impact to existing natural resources within the surrounding area, community, or region;
(5) The proposed land use, including buildings, structures, and facilities, shall be compatible with the locality and surrounding areas, appropriate to the physical conditions and capabilities of the specific parcel or parcels;
(6) 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;
(7) Subdivision of land will not be utilized to increase the intensity of land uses in the conservation district; and
(8) The proposed land use will not be materially detrimental to the public health, safety, and welfare.
The applicant shall have the burden of demonstrating that a proposed land use is consistent with the above criteria.
The BLNR made extensive FOFs and COLs regarding each of the eight criteria. See BLNR Decision and Order, pp. 77 to 189, FOF 429-1040, pp. 213-37, COL 121-321. Appellants generally allege that the BLNR’s findings in this regard are erroneous, but their generalized assertions relate only to subsections (4) through (6), as discussed below.
a. HAR § 13-5-30(c)(4)
HAR § 13-5-30(c)(4) prohibits a "proposed land use" if it will "cause substantial adverse impact to existing natural resources within the surrounding area, community, or region." HAR § 13-5-2 (1994) defines "natural resources" to mean "resources such as plants, aquatic life and wildlife, cultural, historic, recreational, geologic, and archeological sites, scenic areas, ecologically significant areas, watersheds, and minerals."
In Ka Pa‘akai, we declined to define "cultural resources" stating, " ‘[c]ultural resources’ is a broad category, of which native Hawaiian rights is only one subset. In other words, we do not suggest that the statutory term, ‘cultural resources’ is synonymous with the constitutional term, customary and traditional native Hawaiian rights." Ka Pa‘akai, 94 Hawai‘i at 47 n.27, 7 P.3d at 1084 n.27. Although not specifically asserted by Appellants as a point of error, the BLNR suggested in COL 203 that cultural practices are not cultural resources protected by HAR § 13-5-30(c)(4), stating "[u]nder the definition of ‘Natural resource’ in HAR § 13-5-2, cultural, historical, and archaeological ‘sites’ are ‘natural resources’; but cultural practices are not necessarily." However, the DLNR had included Native Hawaiian "cultural practices" within its assessment of "natural resources," despite the University’s incorrect position that "cultural practices" are not "natural resources." In addition, the BLNR’s HAR § 13-5-30(c)(4) analysis contains numerous references to its assessment of the impact of the TMT Project on cultural practices. See, e.g., COLs 198, 199, 205-10, 212, and 215. Therefore, any error in COL 203 is harmless.
The BLNR concluded that the TMT Project will not cause substantial adverse impacts to existing natural resources within the surrounding area, community, or region. Appellants agree with the BLNR’s conclusion that the cumulative effects of astronomical development and other uses in the summit area of Mauna Kea, even without the TMT, have already resulted in substantial, significant and adverse impacts, but challenge the BLNR’s conclusion that, therefore, the impacts on natural resources within the Astronomy Precinct of the MKSR would be substantially the same even in the absence of the TMT Project.
Similar to the Advanced Technology Solar Telescope ("ATST") atop Haleakala, Kilakila III, 138 Hawai‘i at 402-05, 382 P.3d at 214-17, it is undisputed that even without the TMT, the cumulative effect of astronomical development and other uses in the summit area of Mauna Kea have resulted in impacts that are substantial, significant and adverse. We opined in Kilakila III, however, that the "BLNR does not have license to endlessly approve permits for construction in conservation districts, based purely on the rationale that every additional facility is purely incremental. It cannot be the case that the presence of one facility necessarily renders all additional facilities as an ‘incremental’ addition." Kilakila III, 138 Hawai‘i at 404, 382 P.3d at 216.
As discussed earlier, there was no evidence of use of the TMT Observatory site and Access Way area for Native Hawaiian cultural practices. The BLNR asserts that in determining whether the TMT Project would have a substantial adverse impact on natural resources within the broader surrounding area, community, or region, as prohibited by HAR § 13-5-30(c)(4), it properly considered a host of measures designed to address environmental and cultural impacts of the TMT Project. These measures included project level measures, as well as the University’s commitment to decommissioning the CSO, Hoku Ke‘a, and the UKIRT telescopes by the time TMT is operational.
In its FOF 522, the BLNR listed a number of measures designed to reduce or offset the negative impact of the TMT project, including: (1) site selection and infrastructure design to lessen the visual, cultural and environmental impact; (2) TMT Access Way design to reduce impact; (3) implementing a cultural and natural resources training program; (4) developing educational exhibits; (5) restoring Pu‘u Poli‘ahu; (6) providing a sense of place within the TMT facilities; (7) providing financial contributions to support cultural programs; (8) implementing specific cultural and community outreach efforts; (9) implementing cultural observance days; (10) continuing consultation with the State Historic Preservation Division and Kahu Ku Mauna Council regarding protocols for the relocation of the modern shrine; (11) working with OMKM to develop and implement a wekiu bug habitat restoration study; (12) developing and implementing an invasive species prevention and control program; and (13) continuing consultations with cultural practitioners.
Appellants assert that these measures are insufficient and that, in any event, there is no commitment to restore the abandoned Poli‘ahu Road and to decommission three telescopes. FOF 344 indicates, however, that TIO committed to restore the closed access road on Pu‘u Poli‘ahu in accordance with plans already approved by the DLNR. Also, the University committed to the decommissioning and restoration of the CSO, Hoku Ke‘a, and the UKIRT telescopes by the time TMT is operational. Moreover, Special Conditions 10 and 11 for the CDUP provide:
10. The University will decommission three telescopes permanently, as soon as reasonably possible, and no new observatories will be constructed on those sites. This commitment will be legally binding on the University and shall be included in any lease renewal or extension proposed by the University for Mauna Kea;
11. Notwithstanding any lease renewal or extension, consistent with the Decommissioning Plan, at least two additional facilities will be permanently decommissioned by December 31, 2033, including the Very Long Baseline Array antenna and at least one additional observatory.
Although Special Condition 11 lacks the language included in Special Condition 10 specifying that it is a legally binding commitment, we interpret it and the other conditions included in the BLNR’s Decision and Order to be similarly binding.
Although Special Condition 11 lacks the language included in Special Condition 10 specifying that it is a legally binding commitment, we interpret it and the other conditions included in the BLNR’s Decision and Order to be similarly binding.
With respect to the decommissioning commitment and requirement, the University owns four telescopes on Mauna Kea: UKIRT, JCMT, Hoku Ke‘a, and the University 2.2-meter Telescope. The University operates the University 2.2-meter Telescope and Hoku Ke‘a; UKIRT and JCMT are operated by other organizations. CSO and Hoku Ke‘a have already submitted their notices of intent to decommission. The University has also committed to decommission UKIRT by the time TMT becomes operational. In addition, Special Condition 11 requires that the Very Long Baseline Array antenna and at least one additional observatory be decommissioned by December 31, 2033.
With respect to funding for decommissioning, in January 2010, OMKM promulgated a Decommissioning Plan as a Sub-Plan of the Mauna Kea Comprehensive Management Plan. The Decommissioning Plan calls for all new telescopes and existing telescopes that renegotiate their subleases to develop decommissioning funding plans to provide assurances of funds to finance the removal of their facilities and restore sites when the time to decommission arrives. The CSO decommissioning will be performed under the Decommissioning Plan. TIO has also committed to decommissioning the TMT under the Decommissioning Plan. Its funding plan calls for depositing a million dollars per year, with adjustments for inflation, commencing upon observatory operation for the 50-year useful life of the TMT.
The University is responsible for funding and executing the decommissioning of its own facilities. Before the transfer of ownership of the UKIRT and JCMT facilities to itself, the University secured $2.5 million for each telescope from the United Kingdom to defray the anticipated costs of decommissioning those telescopes.
Thus, contrary to Appellants’ assertion, there are commitments to restore the abandoned Poli‘ahu Road and to decommission three telescopes by the time TMT is operational. There is also a requirement to decommission two additional telescopes by December 31, 2033, a commitment to not seek any additional telescope sites to replace the five telescopes that will be removed, and a plan for decommissioning other telescopes, including the TMT.
It was appropriate for the BLNR to consider these measures in its HAR § 13-5-30(c)(4) analysis. Kilakila III, 138 Hawai‘i at 404-05, 382 P.3d at 216-17 ; Morimoto v. Bd. of Land & Natural Res., 107 Hawai‘i 296, 303, 113 P.3d 172, 179 (2005).
The BLNR also recognized that "[t]he incremental nature of a project’s impacts, standing alone, cannot endlessly justify development within an existing developed area[,]" but found that, "in this case, the TMT Project’s compliance with all applicable rules, regulations, and requirements, the Master Plan, CMP, sub-plans, and the TMT Management Plan, along with the mitigation measures committed to in the TMT Final EIS, CDUA, and TMT Management Plan, demonstrate that the TMT Project will not cause substantial adverse impact to the existing natural resources within the surrounding area, community, or region under HAR § 13-5-30(c)(4)." Because (1) the TMT will not cause substantial adverse impact to existing plants, aquatic life and wildlife, cultural, historic, and archaeological sites, minerals, recreational sites, geologic sites, scenic areas, ecologically significant areas, and watersheds, (2) mitigation measures of restoring the abandoned Poli‘ahu Road and decommissioning five telescopes will be adopted, and (3) other measures to lessen the impacts of the TMT will be adopted, the BLNR did not clearly err in concluding that the TMT will not have a substantial adverse impact to existing natural resources within the surrounding area, community, or region, as prohibited by HAR § 13-5-30(c)(4).
b. HAR § 13-5-30(c)(5)
HAR § 13-5-30(c)(5) required the BLNR to evaluate whether "[t]he proposed land use, including buildings, structures, and facilities, [is] compatible with the locality and surrounding areas and appropriate to the physical conditions and capabilities of the specific parcel or parcels." Appellants specifically challenge the BLNR’s conclusion that TMT is "compatible with the locality and surrounding areas." In this case, the BLNR analyzed the TMT for purposes of HAR § 13-5-30(c)(5) in the context of the 525-acre Astronomy Precinct of the MKSR. In Kilakila III, we affirmed the BLNR’s analysis of the ATST project within the Haleakala High Altitude Observatory ("HO") site, a single, highly developed 18.166-acre area within a much larger conservation district. Kilakila III, 138 Hawai‘i at 405, 382 P.3d at 217. Appellants argue that the area evaluated for impacts for the ATST on Haleakala differs significantly from the 525-acre Mauna Kea Astronomy Precinct, which encompasses an area including the summit and Northern Plateau areas of Mauna Kea.
There do not appear to be any clear criteria as to how to determine what should constitute the appropriate "locality and surrounding areas." Nonetheless, total deference to the BLNR’s decision regarding the area to be evaluated would allow many of the HAR § 13-5-30(c) criteria to be circumvented through strategic delineation, and there accordingly must be a sound and rational basis for defining the relevant locale.
In this case, it is true that the Astronomy Precinct is 525 acres, and much larger than the site evaluated in Kilakila III. Under the MKSR Master Plan, however, astronomy de velopment is restricted to a defined 150-acre portion of the 525-acre Astronomy Precinct. The issue raised by Appellants regarding HAR § 13-5-30(c) is whether "[t]he proposed land use ... [is] compatible with the locality and surrounding areas...." The BLNR noted that the proposed location of the TMT Project is a half mile from the summit area, in proximity to the eleven other previously developed facilities for astronomy within the Astronomy Project. Therefore, on these facts, we cannot say that the BLNR erred in concluding that the TMT Project is "compatible with the locality and surrounding areas."
c. HAR § 13-5-30(c)(6)
HAR § 13-5-30(c)(6) (1994) provides: "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[.]"
Appellants allege this requirement was not met. The BLNR points out that, in Kilakila III, we upheld the BLNR’s findings and conclusions with respect to § 13-5-30(c)(6) on the grounds that:
BLNR noted that "[t]he ATST will not enhance the natural beauty or open space characteristics of the HO site." However, because "[t]he HO site contains various astronomy facilities, including support buildings, roads and parking lots[,]" and "the proposed ATST is similar to existing facilities," BLNR concluded that "[t]he ATST will be consistent with and will preserve the existing physical and environmental aspects of the land...." Additionally, BLNR considered numerous mitigation commitments in the CDUA, which were designed to mitigate impacts on biological resources.... Therefore, similar to its analysis of HAR § 13-5-30(c)(4), BLNR articulated with "reasonable clarity" why the ATST would preserve the existing physical and environmental aspects of the land.
They cite to Kilakila III, 138 Hawai‘i at 407, 382 P.3d at 219.
The BLNR cites to various measures, including the removal of telescopes from the summit ridge, which will be taken to preserve the natural beauty and open space characteristics of the land. Furthermore, the University formally committed that this is the last new area of Mauna Kea where a telescope project would be sought. The BLNR’s findings with respect to HAR § 13-5-30(c)(6) are not clearly erroneous.
Therefore, Appellants’ allegations based HAR § 13-5-30(c) are without merit.
D. Other Procedural Issues
1. Whether the original CDUA should have been stricken and a new CDUA required.
MKAH Appellants argue the Hearing Officer erred when she denied their motion to strike the CDUA because TIO and TOC are different corporations. They assert the CDUA "should have been stricken and a new application submitted" because the CDUA had been brought by UHH on behalf of TOC, not on behalf of TIO.
The sections of the Hawai‘i Administrative Rules cited by the MKAH Appellants do not support their position. HAR § 13-5-31 (1994) does not explicitly state who may apply for a permit; rather, it requires the signature of the landowner. HAR § 13-5-31(a)(5). HAR § 13-5-31(b) then allows "the State of Hawaii or government entity with management control over the parcel" to sign as landowner when the CDUA pertains to state or public land. The rules do not require the CDUA applicant to submit a new application after a change in developers.
If a proposed project has changed significantly, however, it appears an amended application would be required to comport with due process requirements of adequate notice and an opportunity to be heard on the actual project.
Appellants assert they were not given an opportunity to comment on the actual entity for which the CDUP was ultimately intended. Appellants had ample opportunity during the contested case hearing, however, to comment on TIO, challenge its participation by opposing its admission as a party, and cross-examine its witnesses.Therefore, this point of error is without merit.
2. What the nature of the proceeding was below, and whether there is an appropriate record on appeal.
Appellant Temple of Lono asserts that the manner in which the proceedings were handled after remand makes it unclear whether this was a new contested case or a resumption of the prior contested case. It argues that if the remand was treated as initiation of a new contested case, then the process had to provide some means for people to qualify as parties by requesting a contested case, such as a public hearing, citing to HAR § 13-1-29 (2009). It further asserts that after remand, the BLNR stated that the contested case was being "resumed" but also stated that "no chapter 92 public meeting was required to "start up" the contested case. It asserts that, after remand, the proceeding "ended up as a hybrid recognized nowhere in the rules."
Appellant Temple of Lono appears to misapprehend the difference between a "contested case" and a "contested case hearing." " ‘Contested case’ means a proceeding in which the legal rights, duties, or privileges of specific parties are required by law to be determined after an opportunity for agency hearing." HRS § 91-1 (1993 & Supp. 2017). In Mauna Kea I, we vacated the judgment that followed the first contested case hearing and remanded the case for a new hearing without dismissing the contested case itself. 136 Hawai‘i at 399, 363 P.3d at 247. Thus, in the contested case hearing after remand, just as in a new trial after remand, a new record on appeal is created based on admitted evidence.
The Hearing Officer therefore appropriately included in the record on appeal filings from the contested case up until the point in time that the CDUA was originally approved. She then continued the proceeding from that point, with filings and evidence from the second contested case hearing. This point of error is therefore without merit.
3. Whether TIO and PUEO should have been admitted as parties.
MKAH Appellants, Appellant Temple of Lono, and Appellant Fergerstrom assert the Hearing Officer and the BLNR erred by admitting TIO and PUEO as parties to the contested case hearing after our remand in Mauna Kea I. They assert TIO and PUEO’s motions to intervene were not timely because they were filed after our remand, five and a half years after the February 25, 2011 board meeting at which the BLNR approved the CDUA and ordered that a contested case hearing be held.
As discussed in the previous section, we remanded for a new "contested case hearing," and did not require initiation of a new "contested case." Admitting interested parties to participate for the new contested case hearing on remand was consistent with the due process concerns of Mauna Kea I. See id. Also, HAR § 13-1-31(a) (2009) requires the decision maker to determine the parties "within a reasonable time following the ten-day period following the board meeting." The "board meeting" in question is "the board meeting at which the subject matter of the request is scheduled for board disposition" identified in HAR § 13-1-29 (2009), which, in this case, was the February 25, 2011 board meeting.
HAR § 13-1-31(b) and (c) (2009), however, do not support Appellants’ assertion that TIO and PUEO’s applications were untimely. Subsection (b) gave the Hearing Officer authority to admit parties based "upon timely application." Subsection (c) gave the Hearing Officer discretion to admit parties "who can show a substantial interest in the matter" so long as "the requestor’s participation [would] substantially assist the board in its decision making."
Although PUEO and TIO "were not admitted "at the ‘same time’ as the request for [the MKAH Appellants] on or about February 25, 2011 for a contested case hearing," there was no abuse of discretion or other error. Although HAR § 13-1-31(d) (2009) states, "All persons with similar interests seeking to be admitted as parties shall be considered at the same time so far as possible[,]" it does not preclude a later addition of parties.
Thus, the intervention of new parties after remand from this court was not erroneous. 4. Whether the Hearing Officer’s scheduling of presentations by the parties violated Appellants’ due process rights.
This issue arises out of an August 23, 2016 procedural ruling by the Hearing Officer requiring all parties to simultaneously submit witness lists, their witnesses’ written direct testimonies, exhibit lists, and exhibits, at a date to be set sometime in October 2016. Appellants argue that as the party seeking the CDUP, UHH had the burden of presenting a case sufficient to secure the BLNR’s approval of the CDUA, citing to HAR § 13-1-35(k) (2009), which provides:
The party initiating the proceeding and, in the case of proceedings on alleged violations of law, the department, shall have the burden of proof, including the burden of producing evidence as well as the burden of persuasion. The quantum of proof shall be a preponderance of the evidence.
They assert that opponents have no burden of proof and should not have been required to put on their case simultaneously with UHH. They further assert that requiring them to prepare their case without seeing UHH’s case violated their due process rights.
The Hearing Officer has discretion to determine hearing procedures pursuant to HAR § 13-1-32(b) and (c) (2009), but it appears that there was an abuse of that discretion. As Appellants argue, UHH had the burden, and even if exhibit lists and exhibits were properly ordered to be simultaneously submitted, the opponents of granting a permit for construction of the TMT should not have been required to submit their testimonies simultaneously with UHH. Despite the Hearing Officer’s initial deadline, however, Appellants were able to add new witnesses and exhibits throughout the evidentiary proceeding well past that deadline, and rebuttal witnesses were allowed upon a showing of good cause. Moreover, Appellants do not allege any actual prejudice due to the initial simultaneous submission requirement. Thus, Appellants were provided their due process right "to be heard at a meaningful time and in a meaningful manner[.]" Sandy Beach Def. Fund v. City Council, 70 Hawai‘i 361, 378, 773 P.2d 250, 261 (1989) (citations omitted).
In Point of Error D(5), Appellant Temple of Lono asserts there was often significant time between the filing of its motions and issuance of rulings on those motions, and asserts eighteen motions were not decided or decided late. Of the eighteen motions, all but one were filed after the July 18, 2016 motions deadline, and the Hearing Officer eventually ruled on all motions. In Point of Error D(6), the Temple alleges that the Hearing Officer refused to provide "reasoned explanations" for her rulings. The record indicates that explanations were provided to the Temple for all of the rulings. Therefore, these points of error lack merit.
5. Whether the Hearing Officer improperly failed to provide required rulings and explanations for thousands of proposed findings of fact.
Appellant Temple of Lono asserts the Hearing Officer failed to comply with the requirement to provide a ruling on each of its proposed FOFs. It cites HRS § 91-12 (1993), which provides as below, with emphases added:
Decisions and orders. Every decision and order adverse to a party to the proceeding, rendered by an agency in a contested case, shall be in writing or stated in the record and shall be accompanied by separate findings of fact and conclusions of law.If any party to the proceeding has filed proposed findings of fact, the agency shall incorporate in its decision a ruling upon each proposed finding so presented. The agency shall notify the parties to the proceeding by delivering or mailing a certified copy of the decision and order and accompanying findings and conclusions within a reasonable time to each party or to the party’s attorney of record.
The Hearing Officer’s Proposed Findings of Fact, Conclusions of Law, Decision and Order stated in the Introduction section:
Any proposed finding of fact submitted by the parties which is not specifically incorporated is rejected for one or more of the following reasons:
—They are repetitious or similar to the Hearing Officer’s own findings of fact or conclusions of law or decision and order, and/or
—They are not supported by reliable and/or probative evidence, and/or
—They are in whole or in part not supported by and/or are contrary to the facts or law, and/or
—They are immaterial, superfluous, and/or irrelevant to the material facts, issues, and/or law of this case.
Appellant Temple of Lono alleges that without specific rulings on each proposed finding, a party is left to first search out which proposed findings the Hearing Officer rejected. It asserts that the proposing party must engage in pure speculation as to which of the above possible reasons or combination of reasons a proposed finding had been rejected, and that this process does not provide a meaningful opportunity to file exceptions.
In Mitchell v. BWK Joint Venture, 57 Haw. 535, 540-43, 560 P.2d 1292, 1296-97 (1977), we held that HRS § 91-12 was not violated when a board rejected wholesale a number of proposed findings "for the reason that these findings of fact had been disapproved by the board or were repetitious of testimony which was already in evidence". We also stated:
The respondent offered 53 proposed findings, of which the Board accepted 20. It rejected the remaining proposed findings "because they are, in whole or in part, contrary to the facts or the law or because they are immaterial." Such a statement indicated the Board‘s ruling with respect to its adoption or rejection of all 53 of the proposed findings, and we see no objection to including all 53 rulings in one sentence instead of 53 separate sentences .
Mitchell, 57 Haw. at 541-42, 560 P.2d at 1296-97 (emphasis added). In Application of Hawaiian Tel. Co., we also stated that "[i]t is a settled rule in administrative law that a separate ruling on each proposed finding filed by a party is not indispensable. ... All that is required is that the agency incorporate its findings in its decision." 54 Haw. 663, 668, 513 P.2d 1376, 1379 (1973) (citation omitted). Also, the ICA ruled in Outdoor Circle v. Harold K.L. Castle Tr. Estate, that where an agency "made and incorporated reasonably clear findings" and "[b]y choosing those, it impliedly rejected all others," the agency did not violate HRS § 91-12. 4 Haw. App. 633, 645, 675 P.2d 784, 792 (1983). The ICA also ruled in Survivors of Timothy Freitas, Dec. v. Pac. Contractors Co., that HRS § 91-12 does not require "a separate ruling on each proposed finding." 1 Haw. App. 77, 84, 613 P.2d 927, 932 (1980). To the extent the Hearing Officer did not adopt the Temple of Lono’s proposed findings, they were impliedly rejected on the merits.
Therefore, this point of error is also without merit.
Finally, in Point of Error D(8), Appellant Temple of Lono asserts that because the new Hearing Officer knew that the BLNR had earlier approved the permit, there is a question of how the Hearing Officer "would be any less influenced by the premature approval of the permit than the hearing officer in the first proceeding." In Mauna Kea I, however, we ordered that the permit issued in the first proceeding be vacated and the matter remanded to the BLNR "so that a contested case hearing can be conducted before [the BLNR] or a new hearing officer, or for other proceedings consistent with this opinion." Mauna Kea I, 136 Hawai‘i at 381, 399, 363 P.3d at 229, 247. The Hearing Officer was therefore required to read the court’s opinion, which details the previous procedural history. If Appellant Temple of Lono’s position was correct, there could never be a new contested hearing after remand if an agency or hearing officer was aware of the prior ruling that had been set aside; decisions of judges are also sometimes vacated and remanded to them for further proceedings consistent with an appellate court’s decision. Thus, this point of error is also without merit.
VI. Conclusion
Upon our careful review of the issues raised in these appeals as discussed above, we affirm the BLNR’s September 27, 2017, Decision and Order authorizing issuance of a CDUP for the TMT.
Article XI, section 1 of the Hawai‘i Constitution declares, "All public natural resources are held in trust by the State for the benefit of the people." This provision places an affir mative obligation on the State to "conserve and protect Hawaii’s natural beauty and all natural resources, including land, water, air, minerals and energy sources," for "the benefit of present and future generations." Our constitution also specifies that development or utilization of these natural resources must be "in a manner consistent with their conservation and in furtherance of the self-sufficiency of the State."
In the first opinion by this court in this case, the majority declined to address the application of the public trust doctrine embodied in article XI, section 1 to the potential construction and operation of the Thirty Meter Telescope (TMT or TMT project) on conservation land located on the summit of Mauna Kea, one of the most sacred areas in the state to Native Hawaiians. See generally Mauna Kea Anaina Hou v. Bd. of Land & Nat. Res. (Mauna Kea I ), 136 Hawai‘i 376, 363 P.3d 224 (2015). Today, the court only partially rectifies this omission.
Although the majority acknowledges the applicability of the public trust doctrine to conservation land, it does not fully apply its principles. In only partially adopting our precedents that set out public trust principles applicable to state water resources, the majority effectively determines that the natural resources the constitution entrusts to the State for the benefit of the people are governed by different measures of protection. Majority at 49 n. 25. But neither the text nor the history of article XI, section 1 provides for differing levels of protection for individual natural resources, such as water as compared to land, and this court should not establish artificial distinctions without a compelling basis for doing so. Indeed, the fundamental importance of land to Hawai‘i and its people is manifest in King Kamehameha III’s enduring statement, which was included in our constitution as the official State motto at the same time that article XI, section 1 was adopted: "Ua mau ke ea o ka aina i ka pono," translated by statute to mean, "The life of the land is perpetuated in righteousness." Haw. Const. art. XV, § 5 ; Hawaii Revised Statutes (HRS) § 5-9 (2009).
It is fundamental that the land held in trust under article XI, section 1 should receive the full protections it is rightfully afforded under our constitution. An essential step in securing these protections is establishing a clear framework for agencies and courts to employ in future cases when applying public trust principles to state conservation land. In the absence of such guidance, courts and agencies will be forced to develop their own ad hoc methods of applying public trust principles to the various natural resources implicated by their decisions, which will result in incorrect interpretations and unequal treatment of protected resources.
Further, a clear alternative to this unstructured approach exists in this court’s precedents. Our caselaw setting forth public trust principles governing water resources provides a uniform standard that may easily be applied to other natural resources with only minor alterations. By identifying a general framework for evaluating the impact of State actions, we ensure that all of the public natural resources entrusted to the State for the benefit of the people are afforded the same degree of protection as the text and history of article XI, section 1 attest that the drafters intended. I therefore write separately.
I. Public Lands Have Long Been Regarded as a Public Natural Resource Held in Trust by the State for the Benefit of the People.
The majority states today that "[w]e therefore now hold that conservation district lands owned by the State, such as the lands in the summit area of Mauna Kea, are public resources held in trust for the benefit of the people pursuant to Article XI, Section 1." Majority at 47-48. However, Hawaii’s public lands have long been regarded as subject to the doctrine incorporated by article XI, section 1, having been held in trust for the people’s benefit since the times of the Hawaiian Kingdom. See 136 Hawai‘i at 403–07, 363 P.3d at 251–55 (Pollack, J., concurring).
In 1840, King Kamehameha III promulgated the first constitution to bind Hawai‘i. Id. at 403, 363 P.3d at 251 (citing Fundamental Law of Hawaii 3 (Lorrin A. Thurston ed., 1904)). The document stated the following:
KAMEHAMEHA I, was the founder of the kingdom, and to him belonged all the
land from one end of the Islands to the other, though it was not his own private property. It belonged to the chiefs and the people in common, of whom Kamehameha I, was the head, and had the management of the landed property.
State by Kobayashi v. Zimring, 58 Haw. 106, 111, 566 P.2d 725, 729 (1977) (quoting Fundamental Law of Hawaii 3) (emphasis added). Thus, "[i]t was long ago acknowledged that the people of Hawaii are the original owners of all Hawaiian land," with the king holding it as a trustee and managing it for their benefit. Id. (emphasis added).
Responding to pressure from foreign settlors who sought fee title to land, Kamehameha III instituted a reformation of the traditional system of land tenure during the 1840s. Id. After the Great Mahele, the public domain, which had previously been "all-inclusive," was diminished by the withdrawal of the Crown Lands and lands successfully claimed by the chiefs, konohiki, and tenants. Id. at 113, 566 P.2d at 730–31. But title to all land that was not specifically removed from the public domain has always remained in the people of Hawai‘i, "subject to the stewardship of the government for the benefit of the people." Mauna Kea I, 136 Hawai‘i at 404, 363 P.3d at 252 (Pollack, J., concurring) (citing Zimring, 58 Haw. at 114, 566 P.2d at 731 ).
"The Mahele (meaning ‘division’ or ‘share’) ... was a process with multiple divisions or allocations of land" that laid the foundations for the private ownership of real property within the Kingdom of Hawai‘i. Native Hawaiian Law: A Treatise 13 (Melody Kapilialoha MacKenzie et al. eds., 2015).
This amended dissenting opinion makes technical corrections and minor substantive changes.
"Konohiki in ancient Hawaii were agents of the King or chiefs." Zimring, 58 Haw. at 112 n.4, 566 P.2d at 730 n.4.
The duty to preserve and rehabilitate in perpetuity a resource such as Kaho‘olawe that has, over time, been severely degraded by government action is a duty potentially undermined or extinguished under the new degradation principle. See Hawai‘i Revised Statutes (HRS) § 6K-3(a)(3) (1993) (requiring Kaho‘olawe to be preserved and rehabilitated). The principle is directly contrary to the purpose of the federal National Environmental Policy Act, which notes the obligation of government to protect and restore the environment:
[I]t is the continuing responsibility of the Federal Government to use all practicable means, consistent with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs, and resources to the end that the Nation may—
(1) fulfill the responsibilities of each generation as trustee of the environment for succeeding generations;
(2) assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings;
(3) attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences;
(4) preserve important historic, cultural, and natural aspects of our national heritage, and maintain, wherever possible, an environment which supports diversity and variety of individual choice;
(5) achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life’s amenities; and
(6) enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources.
42 U.S.C. § 4331(b) (2012).
In 1977, this court specifically addressed the implications of this history in State by Kobayashi v. Zimring, in which it considered whether the private owner of what was once ocean-side property on the island of Hawai‘i also held title to approximately eight acres of adjoining land that was created when lava from the 1955 Puna eruption overflowed and extended the shoreline. 58 Haw. at 107-09, 566 P.2d at 727-29. Writing for the court, Chief Justice Richardson stated that "the origin and development of the private title in Hawaii makes clear the validity of the basic proposition in Hawaiian property law that land in its original state is public land and if not awarded or granted, such land remains in the public domain." Id. at 114, 566 P.2d at 731. This history, he wrote, coupled with "equity and sound public policy[,] demand[ed] that such land inure to the benefit of all the people of Hawaii, in whose behalf the government acts as trustee." Id. at 121, 566 P.2d at 735.
Chief Justice Richardson then dispelled all doubt that he was referring to the common law public trust doctrine, stating:
[W]e hold that lava extensions vest when created in the people of Hawaii, held in public trust by the government for the benefit, use and enjoyment of all the people.
Under public trust principles, the State as trustee has the duty to protect and maintain the trust property and regulate its use.
Id. (footnote omitted) (emphasis added). In a footnote, he cited Illinois Central R.R. v. Illinois, 146 U.S. 387, 13 S.Ct. 110, 36 L.Ed. 1018 (1892), as providing guidance regarding the public trust principles to which he referred—the same seminal case this court has frequently cited and extensively discussed in interpreting the State’s article XI, section 1 public trust obligations regarding the use of water. Zimring, 58 Haw. at 121 n.18, 566 P.2d at 735 n.18 ; see, e.g., In re ‘Iao Ground Water Mgmt. Area High-Level Source Water Use Permit Applications, 128 Hawai‘i 228, 277, 287 P.3d 129, 178 (2012) ; Kelly v. 1250 Oceanside Partners, 111 Hawai‘i 205, 221, 140 P.3d 985, 1001 (2006) ; In re Wai‘ola O Moloka‘i, Inc., 103 Hawai‘i 401, 429, 83 P.3d 664, 692 (2004) ; Inre Water Use Permit Applications (Waiahole I ), 94 Hawai‘i 97, 127, 9 P.3d 409, 439 (2000).
Indeed, the delegates to the 1978 Hawai‘i Constitutional Convention adopted article XI, section 1 only a year after Zimring was decided. A review of the convention records indicates that the delegates were well aware of contemporary decisions by this court regarding the public trust doctrine when they drafted the provision. Although Zimring was not mentioned by name, the delegates several times mentioned McBryde Sugar Co., Ltd. v. Robinson, 54 Haw. 174, 187, 504 P.2d 1330, 1339 (1973), a very similar case decided a few years earlier in which this court also discussed the Great Mahele before holding that the ownership of the state’s waters continued to be held in public trust for the benefit of the people. See 2 Proceedings of the Constitutional Convention of Hawai‘i of 1978, at 862, 865, 867, 877, 878 (1980). The delegates then adopted language that expressly set forth the State’s obligation to "conserve and protect ... all natural resources, including land," reaffirming that "[a]ll public natural resources are held in trust by the State for the benefit of the people." Id. at 426 (emphases added) (setting forth the text of Haw. Const. art. XI, § 1 ); see also State ex rel. Bronster v. Yoshina, 84 Hawai‘i 179, 186, 932 P.2d 316, 323 (1997) ("The general rule is that, if the words used in a constitutional provision ... are clear and unambiguous, they are to be construed as they are written" (alteration in original) (quoting Blair v. Cayetano, 73 Haw. 536, 543, 836 P.2d 1066, 1070 (1992) ) ).
On this historical record, the only logical conclusion is that the framers intended article XI, section 1 to incorporate as a constitutional principle Zimring’s holding that land in the public domain is "held in public trust by the government for the benefit, use and enjoyment of all the people." 58 Haw. at 121, 566 P.2d at 735 ; cf. Gardens at W. Maui Vacation Club v. County of Maui, 90 Hawai‘i 334, 341, 978 P.2d 772, 779 (1999) (stating that "[t]he participants of the 1978 constitutional convention ... are presumed to have been aware" of then-recent changes in the law).
Thus, the principle that public land is a public natural resource within the meaning of article XI, section 1 has long been established under our law. As such, it enjoys a stature equal to that afforded to public water resources under the provision, and the same principles should generally apply to our interpretation of agencies’ constitutional public trust obligations with regard to the two resources.
The Mission Statement of the Department of Land and Natural Resources—which is presumably intended to guide the agency in its management of coastal lands, forest preserves, state parks, wildlife sanctuaries, and other public lands over which it has jurisdiction—makes express mention of the Department’s public trust responsibilities:
Enhance, protect, conserve and manage Hawaii’s unique and limited natural, cultural and historic resources held in public trust for current and future generations of the people of Hawaii nei, and its visitors, in partnership with others from the public and private sectors.
Hawai‘i Department of Land and Natural Resources, https://dlnr.hawaii.gov/ (last visited October 29, 2018) (emphasis added). This mission statement and my general discussion of public lands in Hawai‘i notwithstanding, I agree with the majority that, for the purposes of this appeal, it is only necessary for us to determine how public trust principles apply to state conservation lands that have been so classified by the Hawai‘i Land Use Commission pursuant to HRS § 205-2 and Act 234, section 2, of the 1957 Session Laws of Hawaii. Majority at 48 n. 24. The issue of whether the doctrine applies to other types of public land is not before us, nor is the question of what limitations the doctrine may place on the reclassification of conservation land by the Land Use Commission.
"Natural resource" as defined by the version of HAR § 13-5-2 in effect when Appellees submitted their Conservation District Use Application included "resources such as plants, aquatic life and wildlife, cultural, historic, and archaeological sites, and minerals."
II. The Existing Public Trust Framework May Be Applied to Public Lands.
This court has thus far declined to demarcate the outer limits of the public trust doctrine as incorporated by article XI, section 1, instead applying the fundamental principles inherent in the concept of a public trust through case-by-case adjudication. Mauna Kea I, 136 Hawai‘i at 404-05, 363 P.3d at 252-53 (Pollack, J., concurring). We have also recognized a series of attendant duties that the State and its agencies must discharge when a contemplated action may impact a public natural resource. Id.
Our evolving caselaw applying constitutional public trust principles to water usage was collected and summarized by this court in Kauai Springs, Inc. v. Planning Comm‘n of County of Kauai, 133 Hawai‘i 141, 174, 324 P.3d 951, 984 (2014). "To assist agencies in the application of the public trust doctrine,"we distilled from our precedents a framework of inter-related principles applicable to agencies and applicants in discharging their respective obligations under the provision. Id. at 174–75, 324 P.3d at 984–85. The framework initially sets forth general principles relating to the agency’s affirmative duty to fulfill its constitutional trust obligations. See Mauna Kea I, 136 Hawai‘i at 414, 363 P.3d at 262 (Pollack, J., concurring, in which McKenna and Wilson, JJ., joined). Next, the framework provides the agency with evidentiary guides to assist it in addressing these obligations. Lastly, the framework informs the applicant as to what must be shown in order to obtain a permit. All of these principles may be applied to state conservation land with relatively little alteration.
In meeting these obligations, "the role of an agency is not merely to be a passive actor or a neutral umpire, and its duties are not fulfilled simply by providing a level playing field for the parties." Mauna Kea I, 136 Hawai‘i at 414, 363 P.3d at 262 (Pollack, J., concurring, in which McKenna and Wilson, JJ., joined). Rather, agencies must conduct themselves "in a manner that fulfills the State‘s affirmative constitutional obligations." Id. The Kauai Springs framework is not mandatory, however, and it does not "preclude[ ] other analytical approaches that are consistent with the public trust doctrine." Kauai Springs, 133 Hawai‘i at 174 n.25, 324 P.3d at 984 n.25.
The Majority states that the "BLNR does not have license to endlessly approve permits for construction in conservation districts, based purely on the rationale that every additional facility is purely incremental. It cannot be the case that the presence of one facility necessarily renders all additional facilities as an ‘incremental’ addition." Majority Opinion at ––––– – ––––, 431 P.3d at 776–77 (quoting Kilakila ‘O Haleakala v. Bd. of Land & Nat. Res., 138 Hawai‘i 383, 404, 382 P.3d 195, 216 (2016) ). However, the increment with the greatest impact of all telescopes, TMT, is deemed to not cause a substantial adverse impact because prior increments of telescope construction cumulatively caused a substantial adverse impact.
Indeed, the Board of Land and Natural Resources in its decision to grant the permit, and the majority today, apply some of these principles to their consideration of the public trust in this case. They do so however, without stating whether or explaining how these considerations fit within a larger legal framework that can be employed in future cases.
The Astronomy Precinct of the MKSR "currently has eight optical / infrared observatories, three submillimeter observatories and a radio telescope." Eight of these facilities became operational between 1970 and 1992; four became operational between 1996 and 2002. HAR § 13-5-30(c)(4), the rule protecting natural resources from substantial adverse impacts, was adopted in 1994.
The first principle, originally derived from Robinson v. Ariyoshi, 65 Haw. 641, 674, 658 P.2d 287, 310 (1982), sets forth a basic tenet of the public trust doctrine: agencies have the "duty and authority" to maintain the integrity of Hawaii’s public natural resources for future generations and to ensure that they are put to "reasonable and beneficial" use. Kauai Springs, 133 Hawai‘i at 174, 324 P.3d at 984. With respect to conservation land, that duty is to ensure that a contemplated use of conservation land will not result in long-term damage to the land where the project is to occur or compromise the public’s continued use of other natural resources. Additionally, agencies must verify that the use of the land will further a public purpose and that the project is not unreasonable considering possible alternate uses of the conservation land.
In the context of water resources, we have stated that maintaining the integrity of the resource means ensuring the contemplated use of some water does not compromise the purity and flow of the water that remains, thus preserving Hawaii’s many water sources for future generations. Kauai Springs, 133 Hawai‘i at 174, 324 P.3d at 984.
HAR § 13-5-30(b) provides that, "[u]nless provided in this chapter, land uses shall not be undertaken in the conservation district." (Emphasis added). HAR § 13-5-30(c) provides that, "[i]n evaluating the merits of a proposed land use, the department or board shall apply the following criteria." (Emphasis added). We have interpreted this language to mean that a proposed land use is "prohibit[ed]" if it violates HAR § 13-5-30(c)(4), the fourth of these criteria. Majority Opinion at 54. As noted, consistent with the clarification of the State’s duty to protect cultural resources, the 1994 passage of HAR § 13-5-30(c)(4) specifically defined natural resources to include cultural resources.
In making this determination, the Kauai Springs framework calls upon the agency to consider the proposed use of conservation land in relation to the public trust purposes that this court has identified. 133 Hawai‘i at 174, 324 P.3d at 984. The public trust purposes for water resources were developed over time through case-by-case adjudication. An analogous trust purpose for conservation land exists for each.
The first trust purpose, the maintenance of waters in their natural state, is easily adapted: the maintenance of conservation land in its natural state. The second—the protection of domestic water use—is likewise applicable. The analogous trust purpose for conservation land requires the State to consider the protection of the common uses to which the general public puts conservation land, including access, outdoor recreation, and enjoyment. See Waiahole I, 94 Hawai‘i at 137, 9 P.3d at 449.
The third and fourth trust purposes for water resources also have direct analogues when applied to state conservation land. The protection of water in the exercise of Native Hawaiian and traditional and customary rights clearly coincides with the protection of conservation land in the exercise of traditional and customary rights. And consideration of the reservations of water enumerated by the State Water Code would similarly coincide with consideration of the various dedications and regulations of land set forth in federal, state, and local law.
The next set of principles set forth in Kauai Springs provide evidentiary guidance to the agency in fulfilling its public trust obligations, which may also be directly applied to conservation lands with little need for modification. As with water, any consideration of a proposed use of conservation land should include a presumption in favor of public use, access, enjoyment, and resource protection. See Kauai Springs, 133 Hawai‘i at 174, 324 P.3d at 984. Proposed uses for conservation land should be evaluated on a case-by-case basis, and proposals for private or commercial uses should be assessed with a high level of scrutiny. Id.
At this stage, the Kauai Springs framework calls for recognition that public trust prohibits the grant of vested rights in water resources that are incompatible with public trust purposes. 133 Hawai‘i at 174, 324 P.3d at 984 ; see also Waiahole I, 94 Hawai‘i at 137, 9 P.3d at 449 (citing Robinson, 65 Haw. at 677, 658 P.2d at 312 ). As the Board of Land and Natural Resources determined and the Majority correctly states, the "TMT Project does not involve the irrevocable transfer of public land to a private party." Majority at 50. Therefore, for purposes of this appeal, it is not necessary for us to decide what restrictions article XI, section 1 places on the State’s transfer of public lands. But see Zimring, 58 Haw. at 121, 566 P.2d at 735 ("Sale of the property would be permissible only where the sale promotes a valid public purpose").
HAR § 13-5-30(c)(4) protects natural resources in the conservation district from any land use that causes a substantial adverse impact. HAR § 13-5-30(c)(4) does not allow this protection to be balanced against any competing interest, such as economic value from the proposed land use. If the proposed land use will cause a substantial adverse impact to the existing cultural resource, no amount of compensation or economic benefit is legally capable of justifying the impact. This is in contrast to other Hawai‘i resource management regimes, such as the Coastal Zone Management statute, which explicitly requires a balancing test:
No development shall be approved unless the authority [designated by the county] has first found ... [t]hat the development will not have any substantial adverse environmental or ecological effect, except as such adverse effect is minimized to the extent practicable and clearly outweighed by public health, safety, or compelling public interests.
HRS § 205A-26(2)(A) (2017). Unlike the Coastal Zone Management regulatory regime, under HAR § 13-5-30(c)(4), economic benefit is not available as a justification for a project that will cause a substantial adverse impact on natural resources in the conservation district. A change of the land use classification to a designation other than conservation land would be necessary.
Lastly, the Kauai Springs framework specifies what applicants for a proposed use of public natural resources need to show to gain approval. Under the framework, an applicant is required to demonstrate the need for a conservation district use permit, the propriety of using conservation land to fill that need, and a lack of a practicable alternative location suitable for the project. See id. at 174, 324 P.3d at 984. And, if there is a reasonable allegation of harm to public trust purposes, the framework requires that the applicant demonstrate that reasonable mitigation measures will be implemented to alleviate the cumulative impact on trust purposes of both existing and proposed uses. Id. at 175, 324 P.3d at 985. Applying this requirement to conservation land, an applicant must demonstrate that there will be reasonable efforts undertaken to mitigate the negative impact on the public trust purposes discussed above from both the proposed undertaking and other existing projects that make use of conservation land.
In sum, our precedents governing the constitutional public trust obligations of agencies and applicants may readily be adapted to conservation land, and the history and text of article XI, section 1 indicate that they should be so applied. The TMT project should therefore be considered in light of our existing public trust framework rather than ascribing differing types of constitutional protections depending on the particular public natural resource at issue.
III. The Approaches Taken by the Hearing Examiner and the Board, are Inconsistent with the Law, and the Majority Offers Little Guidance to Correct These Missteps.
The great need for guidance regarding the application of public trust principles to state conservation land is amply demonstrated by the manner in which the hearing examiner and the Board of Land and Natural Resources (BLNR or "the Board") addressed the doctrine in this case. In the proposed conclusions of law, for instance, the hearing examiner stated that "the scope of the public trust doctrine has traditionally been limited to water resources, and the reliable, credible and substantial evidence establishes that the TMT Project will not restrict or otherwise impair any water resources." Based on this proposition, the hearing examiner concluded that "the public trust doctrine does not apply to consideration of the TMT Project." But this conclusion is refuted by Zimring, in which this court expressly applied "public trust principles" to public land. See 58 Haw. at 121 & n.18, 566 at 735 & n.18, 566 P.2d 725 (citing Illinois Central R.R., 146 U.S. at 387, 13 S.Ct. 110 ). Further, the proposed conclusion is contrary to the plain language of article XI, section 1, which specifically defines natural resources to "include[ ] land" before stating, "All public natural resources are held in trust by the State for the benefit of the people." (Emphasis added.)
It is thus unsurprising that BLNR rejected this proposed conclusion, instead stating that article XI, section 1"expressly includes all natural resources" and "[u]nquestionably ... imposes mandatory duties on the BLNR to act as a trustee in dealing with" the con servation lands at issue "and the other publicly-owned natural resources on them."
In addressing its constitutional public trust obligations, however, the Board made a number of conclusions that are not wholly consistent with established law. For instance, the Board relied upon Section 5(f) of the Admission Act of 1959 and article X, section 5 of the Hawai‘i Constitution to conclude that "[t]he purposes of the TMT Project are valid public trust uses." BLNR appears to conflate the purposes of the ceded land trust that article XII, section 4 created from the land granted to this state in the Admission Act of 1959, the University trust created by article X, section 5, and the public natural resource trust created by article XI, section 1. To be sure, the three constitutional trusts share similarities, including that the public is a beneficiary of each. And in some instances, the trusts may share assets in common, as in the present case when the conservation land at issue is both ceded land and a public natural resource. But each of the three trusts is distinct, with its own historical origin and unique trust purposes. Accordingly, when a contemplated action may affect property in which multiple trusts hold common title, the State is obligated to consider the impact of its actions on the separate purposes of each trust that is implicated.
See 1 Proceedings of the Constitutional Convention of Hawai‘i of 1978, at 668-69 (1980) (discussing the motivation for the adoption of the ceded land trust); 1 Proceedings of the Constitutional Convention of Hawai‘i of 1950, at 317 (1960) (adopting University trust wording to ensure that university property is held and administered "in a manner consistent with its responsibility as a public institution").
The BLNR described these impacts as being substantial, significant, and adverse:
At the summit ridge, the existing observatories obscure portions of the 360-degree panoramic view from the summit area. Overall, the existing level of the cumulative visual impact from past observatory construction projects at the summit ridge area has been considered to be substantial, significant, and adverse.
Development of the existing observatories also significantly modified the preexisting terrain. The tops of certain pu‘u, or cinder cones, were flattened to accommodate the foundations for observatory facilities. Some materials removed from the pu‘u were pushed over the sides of the cinder cones, creating steeper slopes that are more susceptible to disturbance. Consequently, the existing level of cumulative impact from preexisting observatories on geology, soils, and slope stability is considered to be substantial, significant, and adverse.
The United Kingdom Infrared Telescope, specifically, was constructed on the summit ridge, which the BLNR described as "a more sensitive cultural area." It found that the United Kingdom Infrared Telescope and the James Clark Maxwell Telescope obstruct views to the west, and the 2.2-meter telescope and NASA Infrared Telescope Facility obstruct views to the north.
The Majority’s conclusion that TMT will not have a substantial adverse impact on existing natural resources comes with little explanation, other than to make clear that it is relying upon the reasoning of the BLNR in its Decision and Order. Majority Opinion at 59 (accepting the BLNR’s finding that "the TMT project will not cause substantial adverse impact to the existing natural resources within the surrounding area, community, or region under HAR § 13-5-30(c)(4)").
Though the Majority accepts the BLNR’s conclusion of no substantial adverse impact, it provides no explanation as to how the BLNR reached its conclusion. It does not discuss the BLNR’s proposition that the substantial adverse impacts already imposed on the cultural resources mean that TMT could not be the cause of a substantial adverse impact. Instead, the Majority begs the question. It states as a premise that TMT does not cause a substantial impact and restates the premise as its conclusion. Thus, the Majority avoids an analysis of whether TMT causes a substantial adverse impact to the existing natural resources. The Majority lists resources that the BLNR concluded will not be affected, including cultural resources, and states that because they are not substantially adversely impacted, the BLNR was correct in concluding there is no substantial adverse impact:
Because (1) the TMT will not cause substantial adverse impact to existing plants, aquatic life and wildlife, cultural, historic, and archaeological sites, minerals, recreational sites, geologic sites, scenic areas, ecologically significant areas, and watersheds, (2) mitigation measures of restoring the abandoned Poli‘ahu Road and decommissioning five telescopes will be adopted, and (3) other measures to lessen the impacts of the TMT will be adopted, the BLNR did not clearly err in concluding that the TMT will not have a substantial adverse impact to existing natural resources within the surrounding area, community, or region, as prohibited by HAR § 13-5-30(c)(4).
Majority Opinion at –––– – ––––, 431 P.3d at 778. Most of the Majority’s opinion regarding HAR § 13-5-30(c)(4) is spent discussing the mitigation measures. The focus on mitigation by the BLNR and the Majority supports the conclusion that the project will cause a substantial adverse impact.
Additionally, BLNR suggested that its article XI, section 1 public trust obligations may be coextensive with the eight criteria it is required to fulfill under Hawai‘i Administrative Rules (HAR) § 13-5-30(c). The Board stated that "[t]he criteria set out in HAR § 13-5-30(c) expressly promote these public trust objectives," "[a] thorough and diligent assessment of those criteria necessarily addresses the concerns that doctrine protects since the criteria set out in HAR § 13-5-30(c) embody and implement the public trust doctrine," and "the conclusion that those criteria are satisfied ... is a compelling indication that the public trust obligations of both [the University of Hawai‘i at] Hilo and the BLNR are satisfied as well."
This court has indicated that an agency’s public trust obligations may overlap with the agency’s statutory duties, and it would follow that they may similarly overlap with duties imposed by an administrative rule. See Waiahole I, 94 Hawai‘i at 146, 9 P.3d at 458. And several of the HAR § 13-5-30(c) criteria indeed parallel public trust obligations discussed above. For example, HAR § 13-5-30(c)(1) mandates that a project be consistent with the purpose of the conservation district, which is defined by statute as "to conserve, protect, and preserve the important natural resources of the State through appropriate management and use to promote their long-term sustainability and the public health, safety and welfare." HRS § 183C-1 (2011). HAR § 13-5-30(c)(4) also requires a determination that "[t]he proposed land use will not cause substantial adverse impact to existing natural resources within the surrounding area, community, or region." Together, these inquiries are consistent with an agency’s public trust duty to maintain the integrity of Hawaii’s public natural resources for future generations and to ensure that they are put to beneficial use.
The article XI, section 1 public trust doctrine, however, imposes additional obligations that are unaddressed by the HAR § 13-5-30(c) criteria. The regulation does not require that the agency determine that the proposed use is reasonable by specifically considering it in relation to other possible uses, including the enumerated trust purposes that have been developed through this court’s case law. It also does not afford a presumption in favor of public use, access, enjoyment, and resource protection, nor does it require that the agency subject proposed private or commercial uses to a higher level of scrutiny.
Lastly, the rule does not speak to the obligations that article XI, section 1 imposes on the applicant for the proposed use of natural resources, including demonstrating an actual need for the resource, a lack of alternative means of meeting that need, and the undertaking of reasonable mitigation measures if the proposed use will cause harm to public trust purposes. Thus, although some congruence exists, BLNR’s and the University of Hawai‘i at Hilo’s public trust obligations are distinct from their obligations under HAR § 13-5-30(c). See Kauai Springs, 133 Hawai‘i at 172, 324 P.3d at 982 ("As the public trust arises out of a constitutional mandate, the duty and authority of the state and its subdivisions to weigh competing public and private uses on a case-by-case basis is independent of statutory duties and authorities created by the legislature.").
The majority’s approach does little to correct these misapprehensions. To be sure, the majority cites an array of findings that are relevant to our determination of whether the Board fulfilled its public trust duties under article XI, section 1. Majority at 50-52. It notes, for instance, that BLNR found that the TMT Project will not cause a substantial adverse impact to geological sites and that the site will be decommissioned and restored upon the end of the lease or the project’s anticipated 50-year useful life. Majority at 50. And the majority points out that the Board required that the closed access road on Pu‘u Poli‘ahu be renaturalized and that five existing telescopes be decommissioned in conjunction with the construction of the TMT. Majority at 50.
The majority, however, does not provide significant guidance regarding how these findings should be evaluated or applied under our precedents, stating only in very general terms that they fulfil the requirement of conservation and resource protection. And, because the majority does not establish a framework or set forth specific requirements, the basis for its determination that BLNR fulfilled its article XI, section 1 public trust obligations remains unclear.
Further, the majority misapprehends portions of the article XI, section 1 public trust doctrine that it does apply. In addressing the presumption in favor of public use, access, enjoyment, and resource protection, the majority cites the various grants, scholarships, and career training the operators of the TMT will offer the community if the project is allowed to proceed, as well as the sublease rent that will be paid to the University of Hawai‘i. Majority at 51-52. The majority appears to conclude that these factors make the TMT project a public use that falls within the presumption. But this approach threatens to render the presumption meaningless. Although donations or payments to the State and community that are unrelated to the actual use of a resource may be somewhat relevant to whether the proposed use of the conservation land is being put to a reasonable and beneficial use, they have no bearing on whether the proposed use is itself public in nature. Were this not the case, virtually any use of a natural resource could be converted to a public use falling within the presumption simply by coupling it with sufficient auxiliary payments to the State or community.
In all, the majority’s analysis does not provide a workable approach for courts and agencies tasked with applying the public trust doctrine, particularly in light of the majority’s decision not to define which aspects of the doctrine it would apply to conservation lands. I therefore evaluate the Board’s decision under our established public trust framework to provide guidance in future cases.
IV. BLNR and the Permit Applicant Largely Fulfilled Their Obligations Under Our Existing Public Trust Framework.
Although it misconstrued its duties under article XI, section 1, the findings and conclusions that BLNR made regarding the public trust and other matters are sufficient to evaluate whether the Board satisfied the obligations outlined in the Kauai Springs framework. BLNR’s factual findings on these issues appear to be supported by substantial evidence and are thus not clearly erroneous, and an appellate court is therefore obliged to accept them. See Leslie v. Bd. of Appeals of County of Hawai‘i, 109 Hawai‘i 384, 391, 126 P.3d 1071, 1078 (2006).
Under the adapted framework, an agency’s obligations when evaluating a proposed use of conservation land may be summarized as follows:
a. The agency‘s duty and authority is to maintain conservation land for future generations and to assure that the land is put to reasonable and beneficial use.
b. The agency must determine whether the proposed use is consistent with the public trust purposes:
i. the maintenance of conservation land in its natural state;
ii. the protection of the common uses to which the general public puts conservation land, including access, outdoor recreation, and enjoyment;
iii. the protection of conservation land in the exercise of Native Hawaiian and traditional and customary rights; and
iv. the consideration of conservation land dedications and regulations enumerated by federal, state, and local law.
Although the Majority concludes that, in its degraded condition, the existing resource will not be substantially adversely impacted by the TMT project, it takes a contradictory position implying acknowledgment that TMT will cause a substantial adverse impact that must be mitigated. The Majority seeks to mitigate the damage TMT will cause. It relies upon the University of Hawai‘i at Hilo’s (University) agreement to decommission three telescopes, the Very Long Baseline Array antenna, and one additional observatory. The Majority presumes that the impact from TMT will become less than substantial once the mitigation measures are complete. However, contrary to the assumption of the Majority that TMT can proceed conditioned on significant, long-term mitigation measures, HAR § 13-5-30(c)(4) prohibits land use in the conservation district where the land use will cause a substantial adverse impact. Thus, restoration of cultural resources to a condition that is not substantially adversely impacted must occur before a Conservation District Use Permit is granted.
Moreover, the mitigation measures adopted by the BLNR and the Majority do not constitute reasonable mitigation measures. They are illusory. Three of the telescopes have no required date of decommissioning. Instead, removal is relegated to an undefined point in the future when it is "reasonably possible" to remove them. These aspirational measures appear in Special Conditions 10 and 11 of the permit:
The University will decommission three telescopes permanently, as soon as reasonably possible, and no new observatories will be constructed on those sites. This commitment will be legally binding on the University and shall be included in any lease renewal or extension proposed by the University for Mauna Kea;
... [C]onsistent with the Decommissioning Plan, at least two additional facilities will be permanently decommissioned by December 31, 2033, including the Very Long Baseline Array antenna and at least one additional observatory.
If the University fails to decommission the five telescopes, the BLNR would be authorized, but not required, to revoke the permit for TMT. See HAR § 13-5-44. Given that the BLNR speculates that the time it would take for TMT to become operational is a reasonable amount of time in which to decommission three telescopes, it seems highly unlikely that the BLNR would revoke the TMT permit after this reasonable amount of time has passed—that is, when TMT becomes operational. Even if the permit were revoked due to a failure to decommission the other telescopes, it is not clear that there would be adequate funding to decommission TMT before 2033. These conditions are little more than aspirational goals, as their enforcement would depend on action taken by the very entity presently granting the permit—the BLNR. And the term "as soon as reasonably possible" is vague enough as to be effectively unenforceable. These supposed conditions are ineffective as mitigation measures because their failure can occur at any time up to the completion of the construction of TMT, at which time they are highly unlikely to be put into effect. Rather than mitigating the adverse impact of TMT, they will permit further degradation of the resource that, in its existing condition, has already been substantially adversely impacted.
As discussed, an agency’s foremost duties under the public trust doctrine are 1) to maintain the integrity of public natural resources for future generations and 2) to assure the resources at issue are put to reasonable and beneficial use as compared to other possible ways in which they could be utilized. Kauai Springs, 133 Hawai‘i at 174, 324 P.3d at 984. I thus first examine whether BLNR ensured that the TMT project would not cause long-term damage to Hawaii’s public natural resources. The Board made a range of detailed findings and conclusions relevant to this inquiry.
The Board considered the impact of the TMT project on water drainage, surrounding bodies of water, and Mauna Kea’s underlying groundwater. It made additional specific findings regarding the impact of the project on the flora, fauna, and other biological resources located at and near the project site, including by considering the effect of the project on various habitats and the possibility of the introduction of invasive species. The Board also examined the project’s effect on geologic sites in and around the project area. And the Board made detailed findings regarding the plan to decommission and restore the project site upon the completion of the TMT project.
Based on these findings, BLNR concluded that the TMT Project would not cause significant damage to the public natural resources on or surrounding the project site. It further concluded that the management plan "appropriately addresses" the eventual decommissioning and restoration of the site to its original, natural state. Considered together, these findings and conclusions indicate the Board properly discharged its duty to ensure the TMT Project does not permanently damage or compromise Hawaii’s public natural resources so as to deprive future generations of their beneficial use.
The Kauai Springs framework next calls upon an agency to consider whether the proposed use of the conservation land is beneficial and reasonable in relation to other possible uses. See 133 Hawai‘i at 174, 324 P.3d at 984. The Board specifically found that "[t]he TMT Project will make optimum use of the natural resources" of the Mauna Kea summit, indicating that the TMT Project would result in greater public benefit than other possible uses of the conservation land and related public natural resources. The Board stated that these benefits would accrue at very little harm to the public. "Implemented in accordance with its plans," BLNR found, "the TMT Project will not consume significant natural resources; will not pollute; will not harm species of concern, or the environment generally; will not prevent contemporary, customary, historical and traditional cultural practices; will not impede recreational uses; and will not threaten the public health, safety, or welfare."
Under the framework, the agency must duly evaluate the impact of the proposal on the enumerated trust purposes this court has identified. Kauai Springs, 133 Hawai‘i at 174, 324 P.3d at 984. As discussed, in the context of conservation lands, these purposes include the maintenance of conservation lands in their natural state, protection of recreational usage by the public, protection of conservation lands in the exercise of Native Hawaiian traditional and customary rights, and the preservation of various land dedications and compliance with regulations in state and local law. Each of these trust purposes was properly considered by the Board in its decision and order.
When considering whether the TMT project was consistent with the public trust purpose of maintaining the conservation land in its natural state, the Board acknowledged that the TMT’s Final Environmental Impact Statement indicated that the project would have an incremental negative effect on the site and surrounding environment. As a condition of its approval, however, BLNR required that the closed access road on Pu‘u Poli‘ahu and the batch plant staging area be fully and partially renaturalized, respectively, that three existing telescopes be permanently decommissioned as soon as reasonably possible, and that at least two additional facilities be permanently decommissioned by December 31, 2033. The Board found that, "[w]hen taken in conjunction with its proposed mitigation[ ] and applicable management and decommissioning plans, the overall effect of the TMT Project will be either neutral or provide for lesser overall impacts than current existing uses in the Astronomy precinct." The Board thus effectively concluded that the TMT project was not inconsistent with the trust purpose of maintaining conservation lands in their natural state because, when considered as a whole—including the required decommissioning and renaturalization—the project would cause no greater divergence from the natural state of the land in the astronomy precinct than currently existed and would perhaps bring the land closer to its natural state than under present conditions.
BLNR cited a number of proposed practices as "mitigation measures" that lessened the impact of the TMT project, including the site selection and physical design of the observatory and the implementation of various cultural and natural resources training programs for site personnel. However, as discussed infra, these factors simply lessened the impact of the project and did nothing to offset that impact by improving existing conditions. They were thus not truly mitigation measures for purposes of the constitutional public trust analysis.
"The State reaffirms and shall protect all rights, customarily and traditionally exercised for subsistence, cultural and religious purposes and possessed by ahupua‘a tenants who are descendants of native Hawaiians who inhabited the Hawaiian Islands prior to 1778, subject to the right of the State to regulate such rights." Haw. Const. art. XII, § 7 ; see, e.g., In re Wai‘ola O Moloka‘i Inc., 103 Hawai‘i 401, 409, 83 P.3d 664, 672 (2004) (holding that the Commission on Water Resource Management "failed to discharge its public trust duty to protect native Hawaiians’ traditional and customary gathering rights, as guaranteed by ... [A]rticle XII, section 7 of the Hawai‘i Constitution"); Kalipi v. Hawaiian Tr. Co., 66 Haw. 1, 4, 656 P.2d 745, 748 (1982) (recognizing this court’s obligation to protect and enforce the rights of Native Hawaiians to exercise traditional and customary practices embodied in article XII, section 7 of the Hawai‘i Constitution).
BLNR also considered the effect of the TMT project on the public trust purpose of public access, enjoyment, and recreation. The Board found that, as a whole, the TMT project will neither "impede recreational uses" of Mauna Kea nor have an adverse impact on "recreational sites." Among related considerations, BLNR considered changes to the ambient noise level that the project might cause and concluded that the project would not "contribute to a noticeable increase in noise levels" at "noise-sensitive" recreational sites. The Board also examined the project’s effect on visual and aesthetic resources, ultimately finding that it would not significantly impact any scenic vista or view plane identified in the Hawai‘i County General Plan or the South Kohala Development Plan. The Board acknowledged, however, that "[t]here will be a temporary impact to recreational visitors who expect to traverse near the construction site during construction."
BLNR also made extensive findings regarding the effects of the TMT project on the public trust purpose of protecting Native Hawaiian traditional and cultural practices before ultimately finding that no traditional or cultural practices would be impeded by the project. See Majority at 143 Hawai‘i at 395–99, 431 P.3d at 768–72. And the Board found that, if constructed in accordance with all "relevant plans, sub-plans, and permit conditions," the TMT project will comply with all applicable laws, including local, state, and federal land dedications and regulations. Accordingly, BLNR properly evaluated the impact of the TMT project on each of the enumerated public trust purposes as required by article XI, section 1 under the Kauai Springs framework.
Next, the framework sets forth evidentiary principles to guide the agency’s determinations. It requires that agencies evaluate projects on a case-by-case basis, applying a presumption in favor of public use and subjecting proposed private and commercial uses to a high degree of scrutiny. BLNR examined the corporate entities associated with the TMT, noting that the consortium of education and research institutions that would construct and manage the project was a non-profit venture formed to advance human knowledge. The results of the research done by the project would be shared with the public, the Board found, potentially making great contributions to humankind’s understanding of the universe. Based on these findings, BLNR concluded that the TMT Project was a public or quasi-public use of conservation land. The Board thus effectively determined that, based on the details of this particular case, the TMT project was consistent with the public trust presumption in favor of public use and was a reasonable and beneficial use of the conservation land. Accordingly, when considered together, there is a sufficient basis in the Board’s findings and conclusion to confirm that the agency met each of its Kauai Springs public trust obligations.
Under the framework, the agency is provided with these evidentiary guides for assessing its public trust obligations:
a. The agency is to apply a presumption in favor of public use, access, enjoyment, and resource protection.
b. The agency should evaluate each proposal for use on a case-by-case basis.
c. If the requested use is private or commercial, the agency should apply a high level of scrutiny.
d. The agency should evaluate the proposed use under a "reasonable and beneficial use" standard, which requires examination of the proposed use in relation to other public and private uses.
See, e.g., In re ‘Iao Ground Water Mgmt. Area High-Level Source Water Use Permit Applications, 128 Hawai‘i 228, 276, 287 P.3d 129, 177 (2012) ; Kelly v. 1250 Oceanside Partners, 111 Hawai‘i 205, 222-23, 140 P.3d 985, 1002-03 (2006) ; In re Wai‘ola O Moloka‘i, 103 Hawai‘i at 429–31, 83 P.3d at 692–94 ; In re Water Use Permit Applications(Waiahole I), 94 Hawai‘i 97, 113, 129-32, 138-39, 141, 189, 9 P.3d 409, 425, 441-44, 450-51, 453, 501 (2000) ; Robinson v. Ariyoshi, 65 Haw. 641, 674, 658 P.2d 287, 310 (1982).
As discussed, the Kauai Springs framework also sets forth criteria that applicants must meet to gain approval of a proposed use of public natural resources. 133 Hawai‘i at 174-75, 324 P.3d at 984-85. Under the framework, applicants must demonstrate an actual need for the resource, a lack of alternative means of meeting that need, and the undertaking of reasonable mitigation measures if the proposed use will cause harm to the public trust purposes this court has identified. Id.
As discussed above, under the adapted framework, applicants have the burden to justify the proposed use of conservation lands in light of the trust purposes, which may be summarized as follows:
a. Permit applicants must demonstrate their actual needs and the propriety of using state conservation lands to satisfy those needs.
b. The applicant must demonstrate the absence of a practicable alternative location for the proposed project.
c. If there is a reasonable allegation of harm to public trust purposes, then the applicant must implement reasonable measures to mitigate such cumulative impact from existing and proposed projects using conservation land.
U.S. courts have recognized that the federal government owes a public trust duty to present and future generations. In Juliana v. United States, the U.S. District Court for the District of Oregon ruled that a group of young environmental activists between the ages of eight and nineteen (plaintiffs) had standing to assert substantive due process and public trust claims against the U.S. government based on its failure to adopt adequate measures to decrease the country’s reliance on fossil fuels and reduce carbon emissions. Juliana v. United States, 217 F.Supp.3d 1224, 1233, 1267 (D. Or. 2016), motion to certify appeal denied, No. 6:15-CV-01517-TC, 2017 WL 2483705 (D. Or. June 8, 2017). The plaintiffs argued that the U.S. government has "known for over fifty years that carbon dioxide ("CO2") produced by burning fossil fuels were destabilizing the climate system in a way that would ‘significantly endanger plaintiffs, with the damage persisting for millennia.’ " Id. at 1233. The court granted the plaintiffs standing because they established that the "youth and future generations" would suffer harm "in a concrete and personal way." Id. at 1224, 1267.
BLNR made detailed findings regarding the process by which the summit of Mauna Kea was selected as the location for the TMT project. The decision was the result of an extensive worldwide study to evaluate potential locations. The study concluded that a unique combination of environmental factors made the Mauna Kea summit the best location for the project, including its altitude, location at a favorable latitude, atmospheric clarity and stability, general lack of cloud cover, low humidity, low mean temperature and temperature variability, and distance from light pollution. The Board also made findings regarding the advantages of locating the TMT near related scientific facilities, which would allow the projects to work in conjunction for mutual benefit. Additionally, the Board found that locating the TMT in Hawai‘i will allow the United States to remain at the forefront of astronomy research—a goal that may be unrealized if the TMT were built outside the country.
In short, the University of Hawai‘i at Hilo (UH) offered substantial evidence demonstrating its need for the unique natural resources at the summit of Mauna Kea and that alternative locations would be substantially less suited to meeting that need. It therefore satisfied the first two criteria for approval under article XI, section 1 as interpreted in the Kauai Springs framework.
BLNR determined, however, that there will be at least some harm to the public trust purposes this court has identified when it acknowledged that, considered alone, the TMT would have an "incremental" negative effect on natural resources at the project site and a temporary impact to recreational visitors who expect to traverse near the construction site during construction. UH was therefore required to demonstrate that reasonable mitigation measures would be undertaken to reduce the cumulative harm of TMT and other existing projects making use of conservation land on the public trust purposes. Kauai Springs, 133 Hawai‘i at 175, 324 P.3d at 985.
BLNR found that UH demonstrated an extensive number of mitigation measures associated with the project, including locating the project below the summit ridge, making various adjustments to how the access way and observatory will be built, installing a zero-discharge wastewater system, implementing special training and a mandatory ride-sharing program for TMT employees, and a host of other efforts intended to minimize the impact of the TMT project. But this misconstrues the mitigation analysis. By their nature these efforts cannot mitigate the impact of the TMT project because they are part of the TMT project and merely reduce its impact but do not counterbalance the deleterious effects. This is to say that alterations in how the TMT project will be carried out are included in evaluating the project’s effect. If the impact of the project on public trust purposes remains negative after accounting for these modifications, then applicants are additionally required to demonstrate that mitigations measures will be undertaken to offset this effect. Cf. Morimoto v. Bd. of Land & Nat. Res., 107 Hawai‘i 296, 299, 113 P.3d 172, 175 (2005) (citing a plan to acquire and manage "approximately 10,000 acres for Palila habitat restoration and an attempt to reintroduce the Palila to areas within their historic range where they had not resided" as a mitigation measure "to offset damage to Palila critical habitat and minimize effects on the species" from a proposed project).
Further, it is unclear that some of these actions are not measures that the TMT project would have undertaken in any event. For example, the summit ridge was likely unavailable as a potential location for the 180 foot tall telescope due to height restrictions according to evidence presented at the hearing. In assessing whether applicants have sufficiently demonstrated mitigation measures to offset the negative impact of a proposed project, an agency should not credit the applicant for simply complying with regulations and not causing even greater damage to public trust purposes.
Intergenerational equity is a tenet of international law. Principle 3 of the Rio Declaration on Environment and Development prescribes the boundaries of intergenerational equity: "The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations." Rio Declaration on Environment and Development, princ. 3, June 14, 1992, 31 I.L.M. 874, U.N. Doc. A/CONF.151/26. The International Court of Justice (ICJ) recognized intergenerational equity as early as 1996. In Legality of the Threat or Use of Nuclear Weapons, the ICJ noted "the environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn." Legality of the Threat or Use of Nuclear Weapons, ICJ Reports 1996, p. 241, ¶ 29. The Supreme Court of the Republic of the Philippines recognized the rights of future generations in Juan Antonio, et al. v. Fulgencio S. Factoran, Jr., G.R. No. 101083, 224 S.C.R.A. 792 (S.C. July 30, 1993) (Phil.). In the Juan Antonio case, the petitioners asserted claims to prevent mass deforestation based on the rights of "their generation as well as generations unborn." Juan Antonio, 224 S.C.R.A. at 798. The court’s decision arose from the principle of intergenerational equity:
We find no difficulty in ruling that they can, for themselves, for others of their generation and for the succeeding generations, file a class suit. Their personality to sue in behalf of the succeeding generations can only be based on the concept of intergenerational responsibility insofar as the right to a balanced and healthful ecology is concerned. Such a right, as hereinafter expounded, considers the "rhythm and harmony of nature." Nature means the created world in its entirety. Such rhythm and harmony indispensably include, inter alia, the judicious disposition, utilization, management, renewal and conservation of the country’s forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural resources to the end that their exploration, development and utilization be equitably accessible to the present as well as future generations. Needless to say, every generation has a responsibility to the next to preserve that rhythm and harmony for the full enjoyment of a balanced and healthful ecology. Put a little differently, the minors’ assertion of their right to a sound environment constitutes, at the same time, the performance of their obligation to ensure the protection of that right for the generations to come.
Id. at 798-99. See also Vellore Citizens Welfare Forum v. Union of India, AIR 1996 SC 1, 11 (India) (recognizing that intergenerational equity is a cornerstone of the customary international law principle of sustainable development). Thus, intergenerational equity ensures accountability between the generations of mankind.
Despite the Board’s misapprehension as to what may constitute an appropriate mitigation action, substantial evidence was introduced that true mitigation measures will be undertaken that are sufficient to offset the harm from the project on public trust purposes. The project will fund the renaturalization of a portion of the Batch Plant Staging Area and the closed access road on Pu‘u Poli‘ahu, as well as the decommissioning and restoration of five existing observatories. The project will also contribute funds to the maintenance of Mauna Kea. The Board concluded that these measures will mitigate the harm from the TMT Project and other uses of conservation land to the public trust purposes of maintaining conservation land in its natural state, protecting the use of conservation land in Native Hawaiian traditional and cultural practices and providing for public recreational access. Considered together, these measures indicate that UH sufficiently carried its obligation to demonstrate that damage to public trust purposes will be offset by the implementation of reasonable mitigation measures.
V. BLNR’s Duty to Prudently Manage Public Natural Resources Requires it to Ensure Funding will be Available to Complete the TMT Project Prior to Commencement of Construction.
I share the majority’s concern regarding the adequacy of the applicants’ assurances that sufficient funding will be available for decommissioning. Majority at –––– n. 29, 431 P.3d at 775 n. 29. Further, as the majority aptly notes, we have often stated that the article XI, section 1 public trust "duties imposed upon the state are the duties of a trustee and not simply the duties of a good business manager." Majority at –––– n. 28, 431 P.3d at 775 n. 28 (quoting Waiahole I, 94 Hawai‘i at 143, 9 P.3d at 455 ). Courts have long interpreted the duties of a trustee to include a responsibility to manage the assets of a trust with caution and prudence. See Restatement (Third) of Trusts: General Standard of Prudent Investment § 90 (2007). I do not believe simply ensuring the availability of funds for decommissioning and restoration adequately meets this standard because the ultimate state of the conservation land upon completion of the project does not fully reflect the project’s public costs.
As the Board found, both the construction and decommissioning of the project will cause some disruption and impairment to the public’s use and enjoyment of Mauna Kea, and the project footprint will be unusable for other purposes for the duration of the project. These adverse impacts will potentially be offset by the public benefits of the TMT project if it is completed as planned. But these benefits will not accrue if there is insufficient funding to complete construction and operate the TMT as intended, leaving only the aforementioned negative effects as the result of the endeavor.
Indeed, other state agencies considering potential development have made detailed findings regarding an applicant’s finances and ability to complete a proposed project. See, e.g., In re Castle & Cooke Homes Hawai‘i, Inc., No. A11-793 at 16 (Haw. Land Use Comm’n June 21, 2012), http://files.hawaii.gov/luc/canchonolulu/a11793_dando_06212012.pdf (making findings regarding "petitioner’s financial capability to undertake the project" (capitalization omitted) ); In re Lanai Resort Partners, No. A89-649 at 9-10 (Haw. Land Use Comm’n Apr. 16, 1991), http://luc.hawaii.gov/wp-content/uploads/2018/03/A89-649_Lanai-Resorts_FOFCOLDO_4-16-1991.pdf (same). And BLNR appears to have in the past acknowledged the importance of such verification when considering the development of Mauna Kea.
Before the Board in this case, a party that was challenging the approval of the conservation district use permit argued that approval would be inconsistent with Section II(C) of the Mauna Kea Plan that the Board formally adopted in 1977. This provision provided that "[n]o application or any proposed facility shall have final approval without the applicant having first filed with the Board, adequate security equal to the amount of the contract to construct the telescope facilities, support facilities and to cover any other direct or indirect costs attributed to the project." In its findings, the Board stated that the 1977 Mauna Kea Plan has "obviously been superseded by the much more detailed and extensive planning efforts" undertaken since its release. However, The Board identified no rule or other document that it had formally adopted that either expressly overrode the 1977 Mauna Kea Plan or otherwise addressed the funding requirements for projects undertaken on the site.
Ultimately, this issue is not raised on appeal, and thus it is not necessary for this court to determine whether the Board’s decision was consistent with its internal rules regarding funding. Nevertheless, I do not believe a prudent trustee of public natural resources would assume the risks associated with the TMT project without assurances beyond vague statements regarding future fundraising of an indeterminate nature to be undertaken at an indefinite time. I would therefore hold that the Board is obligated under article XI, section 1 to utilize Special Condition Forty-Three in its Decision and Order, which permits the Chairperson to prescribe additional conditions on the conservation district use permit, to require the permittee to provide concrete information demonstrating the ability of the responsible parties to acquire the requisite construction and operation funding prior to beginning construction.
VI. Conclusion
As an island state, Hawaii’s natural resources are necessarily limited and cannot be replenished from a bordering state or country. Consequently, Hawai‘i has historically provided special protections to its public natural resources, entrusting them to the care of the king or government for the benefit of all its people. It is thus unsurprising that the framers granted these principles the greatest security that may be afforded, incorporating them into the very document that creates the government of this state.
In interpreting these provisions, our cases have provided a level of protection for these public natural resources commensurate with their constitutional stature and historical importance. And while we have often defined these public trust principles in the context of water resources, neither history nor the text of our constitution provide for a hierarchy between water and land. Our public trust precedents should thus be applied equally to conservation land, ensuring that it is preserved to be passed to future generations as it was preserved for us.
I. Introduction
The degradation principle. The Board of Land and Natural Resources (BLNR) grounds its analysis on the proposition that cultural and natural resources protected by the Constitution of the State of Hawai‘i and its enabling laws lose legal protection where degradation of the resource is of sufficient severity as to constitute a substantial adverse impact. Because the area affected by the Thirty Meter Telescope Project (TMT or TMT project) was previously subjected to a substantial adverse impact, the BLNR finds that the proposed TMT project could not have a substantial adverse impact on the existing natural resources. Under this analysis, the cumulative negative impacts from development of prior telescopes caused a substantial adverse impact; therefore, TMT could not be the cause of a substantial adverse impact. As stated by the BLNR, TMT could not "create a tipping point where impacts became significant." Thus, addition of another telescope—TMT—could not be the cause of a substantial adverse impact on the existing resources because the tipping point of a substantial adverse impact had previously been reached.
Appellants object to the principle advanced by the BLNR that "without the TMT Project, the cumulative effect of astronomical development and other uses in the summit area of Mauna Kea have previously resulted in impacts that are substantial, significant and adverse" and, therefore, "[t]he level of impacts on natural resources within the Astronomy Precinct of the [Mauna Kea Science Reserve (MKSR) ] would be substantially the same even in the absence of the TMT Project[.]" In other words, BLNR concludes that the degradation to the summit area has been so substantially adverse that the addition of TMT would have no substantial adverse effect. Thus, while conceding that Mauna Kea receives constitutional and statutory protection commensurate with its unchallenged position as the citadel of the Hawaiian cultural pantheon, the BLNR applies what can be described as a degradation principle to cast off cultural or environmental protection by establishing that prior degradation of the resource—to a level of damage causing a substantial adverse impact—extinguishes the legal protection afforded to natural resources in the conservation district. The degradation principle ignores the unequivocal mandate contained in Hawai‘i Administrative Rules (HAR) § 13-5-30(c)(4) prohibiting a Conservation District Use Permit (CDUP) for a land use that would cause a substantial adverse impact to existing natural resources. The BLNR substitutes a new standard for evaluating the impacts of proposed land uses, a standard that removes the protection to conservation land afforded by HAR § 13-5-30(c)(4). Using the fact that the resource has already suffered a substantial adverse impact, the BLNR concludes that further land uses could not be the cause of substantial adverse impact. Under this new principle of natural resource law, one of the most sacred resources of the Hawaiian culture loses its protection because it has previously undergone substantial adverse impact from prior development of telescopes. The degradation principle portends environmental and cultural damage to cherished natural and cultural resources. It dilutes or reverses the foundational dual objectives of environmental law—namely, to conserve what exists (or is left) and to repair environmental damage; it perpetuates the concept that the passage of time and the degradation of natural resources can justify unacceptable environmental and cultural damage.2 It is noteworthy that the party responsible for the substantial adverse impact to this protected resource is the State of Hawai‘i (State). It is uncontested that the State authorized previous construction within the Astronomy Precinct of the MKSR that created a substantial adverse impact. Thus, the party that caused the substantial adverse impact is empowered by the degradation principle to increase the damage. Now the most extensive construction project yet proposed for the Astronomy Precinct—a 180-foot building 600 feet below the summit ridge of Mauna Kea—is deemed to have no substantial adverse impact due to extensive degradation from prior development of telescopes in the summit area. The degradation principle renders inconsequential the failure of the State to meet its constitutional duty to protect natural and cultural resources for future generations. It renders illusory the public trust duty enshrined in the Constitution of the State of Hawai‘i and heretofore in the decisions of this court to protect such resources. And its policy of condoning continued destruction of natural resources once the resource value has been substantially adversely impacted is contrary to accepted norms of the environmental rule of law.
II. The BLNR and the Majority Fail to Comply with the Requirement of HAR § 13-5-30(c)(4) that the Impact of the Thirty Meter Telescope upon the Existing Adversely Impacted Cultural Resource Be Considered
HAR § 13-5-30(c)(4) prohibits a proposed land use in the conservation district that will cause a substantial adverse impact to existing natural resources: "In evaluating the merits of a proposed land use, ... [t]he proposed land use will not cause substantial adverse impact to existing natural resources within the surrounding area, community, or region." Because "natural resources" includes cultural resources,3 land use cannot occur in the conservation district if it causes a substantial adverse impact to existing cultural resources. HAR § 13-5-30(c)(4) sets the standard to evaluate whether the proposed land use project should be permitted. Under this standard, the impact of the proposed land use must be considered with an understanding of the condition of the existing natural resources. If the land use will cause a substantial adverse impact to the existing natural resources, it is prohibited. The degradation principle violates HAR § 13-5-30(c)(4) by removing the requirement to consider the effect of a proposed land use on the existing natural resource. The degradation principle reverses the requirement that the impact of the new land use be considered; instead, the degradation principle requires that the impact not be considered once the existing resource has suffered a substantial adverse impact. Consideration of the impacts of a proposed land use becomes irrelevant because the existing resource is already substantially degraded.4
It is undisputed that the relevant area of the TMT project has suffered a substantial adverse impact to cultural resources due to the construction of twelve5 telescopes: "[T]he cumulative effects of astronomical development and other uses in the summit area of Mauna Kea have previously resulted in impacts that are substantial, significant and adverse." Understandably, the proscription against imposition of a substantial adverse impact upon conservation district land contained in HAR § 13-5-30(c)(4) must be applied in light of the purpose of the chapter of which it is a part. See Kilakila, 138 Hawai‘i at 405, 382 P.3d at 217. The purpose of HAR Title 13, Chapter 5 is to conserve, protect and preserve the important natural and cultural resources of the State of Hawai‘i in the conservation district: "The purpose of this chapter is to regulate land-use in the conservation district for the purpose of conserving, protecting, and preserving the important natural and cultural resources of the State through appropriate management and use to promote their long-term sustainability and the public health, safety, and welfare." HAR § 13-5-1. To effectuate the protection of cultural resources in the conservation district mandated in HAR Chapter 13-5, HAR § 13-5-30(c)(4) was adopted to prohibit land use that will cause a substantial adverse impact on cultural resources. The legislative history, the record of legislative intent preceding HAR § 13-5-30(c)(4), is an unequivocal expression of intent to protect conservation land from the consequences of the degradation principle. Rather than promote further degradation of conservation land that, in its "existing" condition, has been substantially adversely impacted, i.e., degraded, the Hawai‘i State Legislature (legislature) created a management framework that protects against further degradation. The companion statute that authorized the implementation of HAR § 13-5-30(c)(4) is HRS Chapter 183C. Its purpose is to conserve, protect, and preserve natural and cultural resources in the conservation district—not to establish a process permitting the degradation of such a resource once the resource has been substantially adversely impacted:
The legislature finds that lands within the state land use conservation district contain important natural resources essential to the preservation of the State’s fragile natural ecosystems and the sustainability of the State’s water supply. It is therefore, the intent of the legislature to conserve, protect, and preserve the important natural resources of the State through appropriate management and use to promote their long-term sustainability and the public health, safety and welfare.
HRS § 183C-1 (2011). The adoption of HAR § 13-5-30(c)(4) in 1994 was intended to implement the purpose of HRS Chapter 183C, namely "clarify[ing] the department’s jurisdictional and management responsibilities within the State conservation district." H. Stand. Comm. Rep. No. 491, in 1994 House Journal, at 1057. To clarify the responsibility of the State to conserve, protect, and preserve natural resources, mandatory language prohibiting land use that causes substantial adverse impact on natural resources, including cultural resources, was codified.6 The legislative history of HRS § 183C-1 and HAR § 13-5-30(c)(4) contains no discussion of or allusion to the degradation principle; instead, its import is to provide more clear protection for Hawaii’s natural resources by preventing further damage to conservation land already subjected to substantial adverse impacts.7 As noted, the BLNR’s decision reverses the standard of protection in HAR § 13-5-30(c)(4) requiring evaluation of the impacts of TMT on existing natural resources. The new "reversed" standard ignores the fact that the existing resource has been substantially adversely impacted. The degradation principle eliminates the analytical requirement of HAR § 13-5-30(c)(4) that a determination be made as to whether the proposed land use will have a substantial adverse impact on the resource as it exists. Instead, the degradation principle provides that, once the resource has been substantially adversely impacted, the impact of the proposed land use cannot cause a substantial adverse impact. In this way, the BLNR omits the requirement of HAR § 13-5-30(c)(4) that, regardless of whether the existing resource has previously sustained substantial adverse impact, the impacts of the construction of TMT on existing resources must be considered to determine whether TMT will cause a substantial adverse impact. The BLNR’s decision directly contradicts this court’s holding in Kilakila that required the proposed land use to be considered in the context of "existing natural resources within the surrounding area, community, or region." HAR § 13-5-30(c)(4) ; see 138 Hawai‘i at 403, 382 P.3d at 215 (considering the impacts of a telescope in the context of the cultural resources of the site on which it was proposed to be located).
Thus, the BLNR and the Majority acknowledge past telescope projects have had a substantial adverse impact on cultural resources,8 specifically that the cumulative ef fect of astronomical development on Mauna Kea and other uses of the summit area "have already resulted in substantial, significant and adverse impacts[.]" Majority Opinion at ––––, 431 P.3d at 776. Yet, based on the fact that the condition of the existing resource has already reached the point of substantial adverse impact, the proposed land use escapes scrutiny as to whether it will cause a substantial adverse impact; the "tipping point" beyond which impacts become substantial has already been reached due to the cumulative impacts of prior telescope development. The TMT project cannot, therefore, be the tipping point to cause a substantial adverse impact. The signature purpose of HAR § 13-5-30(c)(4), to prevent land use that will cause a substantial adverse impact to natural resources in the conservation district, is extinguished. Without the protection afforded by HAR § 13-5-30(c)(4) and HRS § 183C-1, the way is open to a conclusion fraught with illogic: the construction of a telescope the magnitude of TMT will not cause a substantial adverse impact to a natural resource of undisputed significant cultural value—notwithstanding that the resource has already been substantially adversely impacted by construction of twelve existing buildings of lesser size. The real severity of the impact to the resource is made apparent by the effort of the BLNR and the Majority to mitigate the project’s effects with conditions that—though ineffective—support that Mauna Kea will be substantially adversely impacted when TMT is constructed.9 The degradation principle is antithetical to the intent expressed in HAR Chapter 13-5 to provide protection to natural resources in the conservation district. It causes cultural resources protected from substantial adverse impact to lose protection once they are substantially impacted in an adverse manner. The import of this method of rejecting the protection afforded to conservation land is the authorization of degradation of resources with utmost cultural and environmental importance. And so it has happened in the instant case.
III. The Degradation Principle Violates Norms of Environmental Law
Norms of environmental law support the legislature’s intent to protect natural resources on conservation land—notwithstanding that it has been previously subjected to a substantial adverse impact. The degradation principle, on the other hand, violates norms of environmental law. It allows further environmental and cultural damage to occur in a region of great cultural significance because the cultural resource has been previously substantially degraded and compromised. This justification for acceleration of damage to a protected resource runs contrary to the intent embodied in article XII, section 7 and article XI, section 9 of the Constitution of the State of Hawai‘i (Hawai‘i Constitution) to protect cultural and environmental rights. The degradation principle also contravenes widely accepted principles of law that protect the outstanding value of cultural and natural resources, notwithstanding degradation to the resource. These norms include intergenerational equity, polluter pays, and non-regression.
A. Cultural and Environmental Rights Embodied in the Hawai‘i Constitution
The degradation principle contravenes provisions of the Hawai‘i Constitution that protect cultural and environmental rights. Article XII, section 7 affirms and protects the rights of Native Hawaiians to engage in traditional and customary practices. Under article XI, section 9, every person holds a substantive "right to a clean and healthful environment[.]" Contrary to article XII, section 7, and article XI, section 9, the degradation principle teaches that once a natural resource in the conservation district is degraded to the degree that it has suffered a substantial adverse impact, it is no longer worthy of protection; it bears insufficient worth to protect the resource from additional proposed development.
This court has held that " ‘[t]he right to a clean and healthful environment’ is a substantive right guaranteed to each person by Article XI, section 9 of the Hawai‘i Constitution[.]" In re Application of Maui Elec. Co., 141 Hawai‘i 249, 261, 408 P.3d 1, 13 (2017) (quoting Haw. Const. art. XI, § 9 ). Article XI, section 9 provides:
Each person has the right to a clean and healthful environment, as defined by laws relating to environmental quality, including control of pollution and conservation, protection and enhancement of natural resources. Any person may enforce this right against any party, public or private, through appropriate legal proceedings, subject to reasonable limitations and regulation as provided by law.
In Maui Electric, this court classified this right as "a property interest protected by due process." 141 Hawai‘i at 261, 408 P.3d at 13. The right to a clean and healthy environment is enumerated in laws relating to the environment including, for example, those that prohibit a proposed land use in a conservation district when it will "cause [a] substantial adverse impact to existing natural resources[.]" HAR § 13-5-30(c)(4). The degradation principle undermines the right to a clean and healthy environment because it allows unimpeded destruction of the environment once a determination is made that the natural resource protected from substantial adverse impacts within the conservation dis trict has been subject to "substantial, significant and adverse" impacts from development. Majority Opinion at 55. Similarly, the degradation principle vitiates the right to practice Native Hawaiian traditional and customary practices embodied in article XII, section 7 of the Hawai‘i Constitution10 whenever the cultural practices have been subjected to a substantial adverse impact in the conservation district.
B. Intergenerational Equity
The State holds Hawaii’s natural resources in trust "[f]or the benefit of present and future generations[.]"11 Haw. Const. art. XI, § 1. This court has consistently emphasized the responsibility held by the State to ensure that the rights of future generations are preserved. E.g., Kauai Springs, Inc. v. Planning Comm’n of Cty. of Kaua‘i, 133 Hawai‘i 141, 172, 324 P.3d 951, 982 (2014) ("The public trust is, therefore, the duty and authority to maintain the purity and flow of our waters for future generations and to assure that the waters of our land are put to reasonable and beneficial uses."); Kelly, 111 Hawai‘i at 221–23, 140 P.3d at 1001–03 (discussing this court’s adoption of the public trust doctrine and the principle of intergenerational equity embodied therein); Waiahole I, 94 Hawai‘i at 141, 9 P.3d at 453 ("Under the public trust, the state has both the authority and duty to preserve the rights of present and future generations in the waters of the state."); Robinson, 65 Haw. at 674, 658 P.2d at 310 (recognizing the State’s concomitant duty to protect water for future generations and ensure that water is "put to reasonable and beneficial uses").12
The BLNR promotes an analysis that requires it to ignore the impacts to future land uses arising from the cumulative effect of twelve telescopes built over the last fifty years in the MKSR. Future generations do not receive the benefit of protection of the cultural resource in the future because past substantial adverse impacts render it unnecessary to determine future impacts from TMT. In Unite Here! Local 5 v. City & Cty. of Honolulu, 123 Hawai‘i 150, 231 P.3d 423 (2010) this court rejected a similar decision to ignore impacts of a proposed land use. In Unite Here!, this court emphasized the importance of considering future impacts from proposed development decisions. The case arose from a proposed expansion of Kuilima Resort at Turtle Bay (Kuilima) on the North Shore of O‘ahu. Unite Here!, 123 Hawai‘i at 154, 231 P.3d at 427. In 1985, Kuilima submitted an environmental impact statement (EIS) to the Department of Land Utilization. Id. The EIS identified various adverse impacts of the development including "drainage, traffic, dust generation, water consumption, marsh drainage input, loss of agricultural uses, construction noise, air quality, and solid waste disposal." Id. at 155, 231 P.3d at 428. Over the course of the next twenty years, the project encountered several delays. Id. at 157, 231 P.3d at 430. In 2005—twenty years after the permit was granted—Kuilima submitted a Site Development Division Master Application Form and contended there was no basis for a supplemental EIS (SEIS) to assess changes to the surrounding area. Id. at 154, 159, 231 P.3d at 427, 432. The Department of Planning and Permitting agreed; it ruled that no SEIS was required because "[n]o time frame for development was either implied or imposed by the City Council as part of its [original] approval." Id. at 159, 231 P.3d at 432. Kuilima was allowed to proceed without conducting a SEIS.
Despite the fact that twenty years had passed since the initial project proposal, the circuit court affirmed the Department of Planning and Permitting’s decision. Id. at 166-67, 231 P.3d at 439-40. It ruled "that a SEIS is required only when there is a substantive project change and ... that, as a matter of law, the timing of the project had not substantively changed." Id. This meant that absent a substantial change in the proposal itself, the original "EIS would remain valid in perpetuity and no SEIS could ever be required[.]" Unite Here! Local 5 v. City & Cty. of Honolulu, 120 Hawai‘i 457, 472, 209 P.3d 1271, 1286 (App. 2009) (Nakamura, J., dissenting), vacated, 123 Hawai‘i 150, 231 P.3d 423 (2010).
This court reversed the ICA’s majority decision. The court found it significant that substantial, cumulative changes in the area occurred between 1985 and 2005. Unite Here!, 123 Hawai‘i at 179, 231 P.3d at 452. This included a dramatic increase in traffic and the introduction of endangered and threatened species in the area, including the monk seal and green sea turtle. Id. The court held that the timing of the project had substantively changed and this change had a significant effect on the project. Id. at 180, 231 P.3d at 453. The passage of twenty years created "an ‘essentially different action’ " than the one proposed, necessitating an SEIS. Id. at 178, 231 P.3d at 451. In Unite Here!, this court contemplated "changes in the project area and its impact on the surrounding communities[.]" Id. In doing so, we considered the impacts of the proposed development on the rights and interests of future generations. Rather than freeze the analysis of the impacts by considering only a period twenty years in the past, this court recognized that the interests of subsequent generations required that the impacts on the resource be considered at the time the construction was to occur.
The BLNR would return to the proposition rejected in Unite Here! that a project need not take into consideration the impacts of the proposed land use on the resource as it presently exists. The degradation principle removes the need to consider the impacts of TMT on the existing resource; once the existing cultural resource has been substantially adversely impacted, it is unnecessary to consider whether a future land use would cause a substantial adverse impact. In this way the BLNR ignores the rights of future generations to the protections specifically afforded them by the rule adopted in 1994, which mandates that "the proposed land use will not cause substantial adverse impact to existing natural resources within the surrounding area, community, or region." HAR § 13-5-30(c)(4). The legislature did not intend that the rights of future generations to the protection of Mauna Kea be ignored by disregarding the impact of the TMT project on a resource already substantially adversely impacted by the construction of twelve telescopes.
Application of the degradation principle disregards the rights of future generations. It creates a threshold condition of damage—substantial adverse impact—that, once met, renders the resource available for future degradation. In so doing, the degradation principle presumes there is no natural resource value left to protect. The actions of prior and present generations extinguish the chance for future generations to protect the environmental and cultural heritage that once enjoyed legal protection. Future generations are left with the proposition enshrined in the degradation principle that incremental degradation to "the highest mountain peak in the Hawaiian Islands" and one that "is of profound importance in Hawaiian culture" justifies significant future degradation if the degradation attains a substantial adverse degree. Mauna Kea Anaina Hou v. Bd. of Land & Nat. Res.(Mauna Kea I), 136 Hawai‘i 376, 399, 363 P.3d 224, 247 (2015).13
C. Polluter Pays Principle
The polluter pays principle seeks to deter environmental degradation by imposing liability on the polluter. See Joslyn Mfg. Co. v. Koppers Co., 40 F.3d 750, 762 (5th Cir. 1994). Polluters must pay for the cost of restoring the value of the site damaged by their own activities and those impacted by the damage. Courts in the United States have applied polluter pays to remedy harm to the environment. E.g., United States v. Capital Tax Corp., 545 F.3d 525, 530 (7th Cir. 2008) (recognizing that the government can recover damages from responsible parties to clean up hazardous waste because "the ‘polluter pays’ " under Title 42, Sections 9606(a) and 9604(a) of the United States Code ); Joslyn Mfg. Co., 40 F.3d at 762 (ordering the polluter to pay the cost of restoring a contaminated site and denying the polluter’s "scheme under which it could defray part of its clean-up cost by passing the contaminated property through a series of innocent landowners and then, when the contamination is discovered, demanding contribution from each"); see also Fla. Const. art. II, § 7 (b) (incorporating the polluter pays principle to protect the Everglades Agricultural Area by holding those who cause pollution "primarily responsible for paying the costs of the abatement of that pollution").
"Polluter pays" is also a principle of international law. A prominent example of its application occurred in the Trail Smelter Arbitration spanning the late 1930s and early 1940s. See Trail Smelter Case (U.S. v. Can.), 3 R.I.A.A. 1905, 1965 (Perm. Ct. Arb. 1938 and 1941). A trail smelter owned by a Canadian corporation emitted noxious sulphur dioxide fumes that drifted and harmed crops in the United States. Id. at 1917, 1965. The Permanent Court of Arbitration held Canada financially responsible for the damage and accorded compensation to the United States:
The Permanent Court of Arbitration is an intergovernmental organization with 121 contracting parties (states) located in the Hague. Permanent Court of Arbitration, https://pca-cpa.org/en/home/(https://perma.cc/B2V9-TCC9) (last visited Nov. 7, 2018). It was formally established through the Convention for the Pacific Settlement of International Disputes in 1899, arising out of a need for a forum to conduct dispute resolution among states. Id.
[U]nder the principles of international law, as well as the law of the United Sates, no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence.... Considering the circumstances of the case, the Tribunal holds that the Dominion of Canada is responsible in international law for the conduct of the Trail Smelter.
Id. Therefore, the polluter was liable for the environmental and economic harm caused by its pollution. Similarly, in the seminal case Vellore Citizens Welfare Forum v. Union of India & Ors., the Supreme Court of India recognized the polluter pays principle as a tenet of sustainable development—a principle of customary international law. AIR 1996 SC 1, 11-13, 22 (India). A citizens’ group challenged tanneries that were releasing untreated effluent into surrounding waterways and land. Id. at 1. The court defined polluter pays:
[T]he absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation.... [P]olluter is liable to pay the cost to the individual sufferers as well as the cost of restoring the environmental degradation.
Id. at 12. The court ordered the formation of an official authority to implement the polluter pays principle to determine the costs of repaying victims and restoring the environment. Id. at 22.
In the absence of an express statutory or constitutional mandate, the court integrated international norms into domestic law. It noted that when customary international law does not directly contradict domestic law, it is inherently incorporated into domestic law:
In view of the above mentioned constitutional and statutory provisions we have no hesitation in holding that the precautionary principle and the polluter pays p[r]inciple are part of the environmental law of the country.
Even otherwise once these principles are accepted as part of the Customary International Law there would be no difficulty in accepting them as part of the domestic law. It is almost accepted proposition of law that the rule of Customary International Law which are not contrary to the municipal law shall be deemed to have been incorporated in the domestic law and shall be followed by the Courts of Law.
Vellore Citizens, AIR 1996 SC at 13. Therefore, the court incorporated the polluter pays principle into its analysis.
The Judicial Committee of the Privy Council, reviewing an appeal from Trinidad and Tobago, recently applied the polluter pays principle to address water pollution regulations:
Lord Carnwath, assigned from the Supreme Court of England, authored the opinion of the Council.
The Polluter Pays Principle ... is now firmly established as a basic principle of international and domestic environmental laws. It is designed to achieve the "internalization of environmental costs", by ensuring that the costs of pollution control and remediation are borne by those who cause the pollution, and thus reflected in the costs of their goods and services, rather than borne by the community at large.
Fishermen & Friends of the Sea v. the Minister of Planning, Hous. & Env’t [2017] UKPC 37 ¶ 2 (appeal taken from Trinidad and Tobago). In Fishermen and Friends, a non-profit organization challenged a regulation promulgated by the Minister of Planning, Housing and the Environment that prescribed fixed fee amounts for cases of pollution or environmental degradation. Id. ¶¶ 6-7. The regulation was promulgated under the National Environmental Policy of Trinidad and Tobago which codifies the polluter pays principle. Id. ¶ 5. Section 2.3(b) of the National Environmental Policy mandates that money collected from polluters "will be used to correct environmental damage." Id. The regulation was challenged as inadequate because it imposed a flat fee on all polluters as opposed to a fee based on actual damage:
In 2001, the Minister of Planning, Housing and the Environment promulgated the Water Pollution Rules and the Water Pollution (Fees) Regulations. Fishermen & Friends, ¶¶ 15-16. The Rules and Regulations established a permitting system whereby permittees that were releasing water pollutants above permissible levels were required to pay a "prescribed fee." Id. ¶ 15. "The fee did not vary according to the type or amount of the pollution permitted" and therefore did not apply polluter pays. Id. ¶ 16.
"As a result of the flat fee model which has been selected, no fees collected are being used to correct environmental damage. This also has a consequential effect in respect of proportionality, as there is no ability to tailor the fee to meet the degree of damage which might be caused by different permittees. The costs associated with rectifying environmental damage will obviously vary according to the pollution load, pollutant profile, sensitivity of receiving environment and toxicity."
Id. ¶ 38. Under this reasoning, the court found that the regulation did not adequately incorporate the polluter pays principle and failed to comply with the National Environmental Policy. Id. ¶¶ 43, 45, 53. The court enforced the polluter pays principle to ensure that polluters are held accountable for the actual harm caused by their development.
The Majority recognizes that the University is responsible for the substantial adverse impacts caused by its development in the summit area of Mauna Kea. It is the "polluter" that caused cultural harm. Under the Majority’s opinion, the polluter pays principle is reversed. The polluter is permitted to benefit from degradation so adverse that the removal of five telescopes—identified by the BLNR and the Majority—would be necessary to mitigate the substantial adverse impact upon cultural resources. The protection of conservation land for future generations afforded by the polluter pays principle is lost.
The University began operating observatories on Mauna Kea in 1968.
D. Non-regression Principle
The principle of non-regression imposes an affirmative obligation to not regress, or backslide, from existing levels of legal protection. This principle is generally applied in the context of cultural and social rights, and environmental law. The Clean Water Act, for example, mandates a "general prohibition on backsliding[.]" Cmtys. for a Better Env’t v. State Water Res. Control Bd., 132 Cal.App.4th 1313, 34 Cal.Rptr.3d 396, 406 (Cal. Ct. App. 2005), as modified (Sept. 27, 2005). It ensures that "subsequent permit effluent limits that are comparable to earlier ones are not allowed to ‘backslide,’ i.e., be less stringent." Id.
Federal Water Pollution Control Act, 33 U.S.C. §§ 1251 -1387 (2012).
The U.S. District Court for the Northern District of California has recognized that the Clean Air Act also implements a non-regression policy. WildEarth Guardians v. Jackson, 870 F.Supp.2d 847, 850 (N.D. Cal. 2012), aff’d sub nom. WildEarth Guardians v. McCarthy, 772 F.3d 1179 (9th Cir. 2014) ("In 1977, Congress further amended the Clean Air Act to add requirements designed to ensure not only that certain air quality standards were attained, but also that the air quality in areas which met the standards would not degrade or backslide.").
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Nations have included the principle of non-regression in treaties and domestic legislation. For example, the Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters between Latin America and the Caribbean, adopted in March 2018, provides that the parties shall be guided by the principle of non-regression. Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean art. 3(c), March 4, 2018, https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVII-18&chapter=27&clang=_en (https://perma.cc/AVK7-5YGM). The European Parliament (Parliament) also applies the non-regression principle to natural resources. Its significance as a principle of environmental protection was a central feature of the Parliament’s commitment to sustainable development. The Parliament specifically adopted a resolution that "calls for the recognition of the principle of non-regression in the context of environmental protection as well as fundamental rights[.]" Resolution of 29 September 2011 on Developing a Common EU Position Ahead of the United Nations Conference on Sustainable Development (Rio+20), PARL. EUR. DOC. P7_TA(2011)0430 (2011). The principle of non-regression was applied by the United Nations General Assembly in 2012. G.A. Res 66/288, ¶ 20, annex, The Future We Want (July 27, 2012). General Assembly Resolution 66/288 recognizes that "it is critical that we do not backtrack from our commitment to the outcome of the United Nations Conference on Environment and Development." Id. (emphasis added).
Notwithstanding prevailing international norms disfavoring backsliding on legal protection of the environment, the analysis of the BLNR and the Majority does so. The purpose of HAR § 13-5-1 is "to regulate land-use in the conservation district for the purpose of conserving, protecting, and preserving the important natural and cultural resources of the State through appropriate management and use to promote their long-term sustainability and the public health, safety, and welfare." Therefore, the natural and cultural resources in conservation districts have a baseline level of protection from usage that causes a substantial adverse impact.
The degradation principle peels away this protection. It allows further degradation based on damage cumulatively caused by prior impacts. The BLNR’s analysis regresses to a former stage of the law—prior to the passage of HAR § 13-5-30(c)(4) in 1994—when the conservation district was not protected by the proscription codified in HAR § 13-5-30(c)(4) barring land use that causes a "substantial, significant and adverse" impact on cultural resources. Per the degradation principle, protection of cultural resources at the summit of Mauna Kea regresses to a time prior to 1994, when the purpose of regulating land use in the conservation district had not yet been specifically defined by regulation as "conserving, protecting, and preserving the important natural and cultural resources of the State[.]" HAR § 13-5-1 (1994).
The BLNR’s decision encourages regression by reversing protections for critical natural resources in the conservation district. It employs an analysis that renders TMT invisible: "Even without the TMT, the cumulative effect of astronomical development and other uses in the summit area of Mauna Kea have resulted in impacts that are substantial, significant and adverse." Majority Opinion at 55 (emphasis added). The BLNR and the Majority enhance regression by ignoring the impact of TMT. But viewed under the correct standard contained in HAR § 13-5-30(c)(4), TMT is not invisible. The principle of non-regression made explicit in HAR § 13-5-30(c)(4) requires that the effects of a 180-foot high structure, dug 21 feet into the earth, 600 feet below the summit of Mauna Kea, be considered. The degradation principle treats any further development on the cultural resource as inconsequential because the cultural resource has already been substantially adversely impacted. As applied to the proposed project, the degradation principle adopts a regressive approach to managing environmental and cultural resources in the conservation district that violates HAR § 13-5-30(c)(4).
IV. Conclusion
The degradation principle ascribes to the legislature the intent that conservation land lose its protection under the Hawai‘i Constitution and the laws of the State of Hawai‘i whenever it has been subjected to a substantial adverse impact. HAR § 13-5-30(c)(4) is a direct refutation of such regressive treatment of conservation land. Instead, the legislature intended—consistent with its constitutional duty to future generations—to conserve, protect, and preserve "the important natural and cultural resources of the State through appropriate management and use to promote their long-term sustainability." HRS § 183C-1. Appellees’ Conservation District Use Application proposes a land use that cannot be permitted if it causes a substantial adverse impact on cultural resources. HAR § 13-5-30(c)(4). The degradation principle substitutes a contrary standard that relieves the permittee of the burden to prove no substantial ad verse impact—if the resource is already substantially adversely impacted. Correctly applied—and consistent with the clear intent of Hawaii’s legislature and norms of environmental law— HAR § 13-5-30(c)(4) requires that the impacts of TMT be assessed with full recognition that the existing resource has already received cumulative impacts that amount to a substantial adverse impact. In light of the correct standard, whether TMT will have a substantial adverse impact where there already is a substantial adverse impact becomes straightforward. The substantial adverse impacts to cultural resources presently existing in the Astronomy Precinct of Mauna Kea combined with the impacts from TMT—a proposed land use that eclipses all other telescopes in magnitude—would constitute an impact on existing cultural resources that is substantial and adverse. Accordingly, the Conservation District Use Application for TMT must be denied.