Friday, January 08, 2010

Hawaii Tribune-Herald on the recent Mauna Kea lawsuit decision

I had posted last week about the dismissal of a lawsuit by the opponents of telescope construction on Mauna Kea (for a background of the relevant issues, see this post). Now, Hawaii Tribune-Herald points out that the 3rd Circuit ruling may not have ended further lawsuits. But first, here is a nice summary of what prompted the current lawsuit about the Comprehensive Management Plan (CMP) approved by the Board of Land and Natural Resources (BLNR):
The Mauna Kea CMP is a wide-ranging plan to manage the vast cultural and natural resources of Mauna Kea. It was developed in response to a 2007 ruling in Hara's court that the mountain lacked a comprehensive management plan, delivering a victory to Mauna Kea Anaina Hou, the Sierra Club, the Royal Order of Kamehameha I and Clarence Ching.

The UH Office of Mauna Kea Management then developed its plan and presented it to the Board of Land and Natural Resources, which passed it at the end of a two-day hearing on April 9. The BLNR denied the request by those same groups, plus KAHEA, for a contested case hearing on Aug. 28, and the decision was appealed to the Circuit Court on Oct. 1. UH attorneys countered with a motion for dismissal.

Hara heard arguments from both sides on Dec. 9 and ruled for the university on Dec. 29. He decided that the April 8-9 public hearing on the CMP did not determine the rights, duties or privileges of the plan's opponents, which would have triggered a requirement for a contested case hearing.

The judge found that the groups failed to prove the land board's passage of the plan adversely affected them, and that the 2007 ruling did not give them any added interest that would have entitled them to a contested case hearing.
But it seems that the actual implementation of the CMP (rather than just the approval) may still prompt more lawsuits. However, I doubt any further lawsuits will stick. The University of Hawaii this time organized much better, took the criticism of Native Hawaiians seriously (there may still be differences in opinion, but at least they did not try to roll over them), and, as far as I can tell, tried to follow the rules with future lawsuits in mind. But lawsuits can still delay the start of construction of the Thirty Meter Telescope (TMT) and that can be quite costly for the Consortium:
Hara's ruling has a potential silver lining for those who oppose the plan on the grounds that it is poorly written and should not have been prepared by the same entity that seeks to develop astronomy facilities there.

"It may be," Hara wrote, "that a future implementation of the CMP might trigger a requirement for a contested case, but the action of the BLNR in accepting and approving the CMP in and of itself does not do so."


"We're disappointed," said the Sierra Club's Nelson Ho, but he added that "it may become justice delayed rather than justice denied."

The CMP "remains an unimplemented plan," Hara wrote. If the university never implements its recommendations, then the rights of the plan's opponents would not be affected, a contested case hearing is not required and the judge cannot consider an appeal.

Ho said the coalition of Hawaiian and environmental groups -- all opposed to the university's management of the mountain -- could appeal Hara's decision to a higher court.

"Or we could wait for the next opportunity," Ho said. "What is that and when is that, and how do we raise our points that this is not a good comprehensive management plan?"

Kealoha Pisciotta, an ally of Ho and president of Mauna Kea Anaina Hou, could not say what advice attorney Colin Yost would give, but she pledged to continue fighting in some way.


"Mauna Kea belongs to the people, and for the Hawaiian people it's a temple and a burial ground. And we're not giving up in any way."
Read the full article here.

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