Why Mauna Kea’s Conservation Land Classification Is Under Scrutiny

Oct 24, 2019

Opposition to the Thirty Meter Telescope may be at the forefront of Mauna Kea protests, but some native Hawaiian practitioners are questioning the cumulative effects of development on the mountain.  Is the construction of 13 telescopes on the summit an appropriate use of conservation lands? The state Land Use Commission takes up that issue beginning today at its hearing in Hilo. 

Hawaiian cultural practitioners Kuʻulei Higashi Kanahele and her husband ʻAhiʻena Kanahele are challenging what they say are “industrial” uses on Mauna Kea’s conservation lands for astronomy-related development. 

The Kanaheles are critical of the University of Hawaiʻi, which is the lead agency in the development of astronomy on the mountain, and the state Board of Land and Natural Resources that manages conservation lands.

“The University never asked, BLNR never asked before they did all this construction whether or not they should do a district boundary amendment,” says Attorney Bianca Isaki, who represents the couple. “And so they never had the opportunity to say no.”

A district boundary amendment reclassifies land from one category to another. Those categories include conservation, agricultural, rural and urban uses.

“Even if one telescope might have been OK, when you successively, cumulatively add all these telescopes, then that’s actually another reason you want to get a district boundary amendment,” said Isaki.

The Kanaheles petitioned the state Land Use Commission in September to determine whether the current use of Mauna Kea lands fits the conservation land classification.

Opponents of the petition argue these issues were thoroughly vetted by the Board of Land and Natural Resources through its conservation district use permit process and later by the Hawaiʻi Supreme Court in the TMT case. The court affirmed last year that the state had properly issued a construction permit for the project, clearing the way for building of the $1.4 billion telescope.

Building of TMT has been blocked for the past three and a half months by protesters who believe Mauna Kea is sacred.

Opponents of the Kanaheles' petition include the University of Hawaiʻi, BLNR and TMT – which have all asked the Land Use Commission deny the petition without a hearing. Opponents argue the commission lacks jurisdiction to establish uses that are consistent with a conservation district, saying that issue is within BLNR's sole discretion.

UH environmental law professor David Forman argues there may have been passing references to land classification issues by the court in the TMT case.

“But the fundamental question that the petitioners raise that there should have been a boundary amendment process has not been addressed by the [state] Supreme Court in that case,” says Forman.

Whatever the commission decides, Forman expects it will be appealed, sending the matter to the Supreme Court.

“That would be a number of years as well and so this could functionally delay efforts to commence construction on the mauna,” said Forman.

The state Land Use Commission is expected to decide the matter after two, and possibly three full days of public testimony.

The meeting is set for Thursday and Friday from 9 a.m. to 5 p.m. at the Crown Room of the Grand Naniloa Resort. A third day may be added on Monday if public testimony continues.