Haleakala v. Bd. of Land

• Decision Date: 06 October 2016
• Docket Number: SCWC–13–0003065
• Citation: 382 P.3d 195,138 Hawai'i 383
• Parties: Kilakila 'O HALEAKALA, Petitioner/Appellant–Appellant, v. BOARD OF LAND and Natural Resources, Department of Land and Natural Resources, Suzanne Case,in her official capacity as Chairperson of the Board of Land and Natural Resources, and University of Hawai'i, Respondents/Appellees–Appellees.
• Court: Hawaii Supreme Court

138 Hawai'i 383

382 P.3d 195

Kilakila 'O HALEAKALA, Petitioner/Appellant–Appellant,

v.BOARD OF LAND and Natural Resources, Department of Land and Natural Resources, Suzanne Case,¹ in her official capacity as Chairperson of the Board of Land and Natural Resources, and University of Hawai'i, Respondents/Appellees–Appellees.

SCWC–13–0003065

Supreme Court of Hawai'i.

OCTOBER 6, 2016

As Corrected October 27, 2016

David Kimo Frankel, Honolulu and Sharla Ann Manley for petitioner Kilakila 'O Haleakalâ.

Linda L.W. Chow for respondents Board of Land and Natural Resources, Department of Land and Natural Resources, and Suzanne Case, in her official capacity as Chairperson of the Board of Land and Natural Resources.

Lisa Woods Munger, Lisa A. Bail, Kimberly A. Vossman and Christine A. Terada, Honolulu, for respondent University of Hawai'i.

RECKTENWALD, C.J., NAKAYAMA AND McKENNA, JJ., WITH McKENNA, J., CONCURRING

SEPARATELY, AND POLLACK, J., DISSENTING SEPARATELY, WITH WHOM WILSON, J., JOINS IN PART, AND WILSON, J., DISSENTING SEPARATELY

OPINION OF THE COURT BY RECKTENWALD, C.J.

This case concerns a conservation district use permit for construction of the Advanced Technology Solar Telescope (ATST) on the island of Maui, in an area at the summit of Haleakalâ that was set aside for astronomical observatories in 1961. Haleakalâ is a site of great cultural and spiritual importance to the Native Hawaiian community. It also bears scientific significance for astronomical studies, and is a popular visitor destination.

The Board of Land and Natural Resources (Board or BLNR) granted a permit for the University of Hawai'i (UH) to construct the ATST.² Kilakila 'O Haleakalâ (Kilakila), an organization "dedicated to the protection of the sacredness of Haleakalâ[,]" challenged BLNR's approval of the permit to construct the ATST. Kilakila appealed to the Circuit Court of the First Circuit and the Intermediate Court of Appeals, and both courts affirmed BLNR's decision.

This court granted certiorari review. We conclude that the permit approval process was not procedurally flawed by prejudgment because BLNR's initial permit was voided. Nor was it flawed by impermissible ex parte communication because BLNR removed the original hearing officer after he communicated with a party, and the BLNR Chairperson's meeting with non-parties did not address the merits of the permit approval process. We further conclude that BLNR validly determined that the ATST met the applicable permit criteria and was consistent with the purposes of the conservation district.

Accordingly, we conclude that BLNR properly granted the permit and affirm the ICA's judgment.

I. Background

A. Haleakalâ, the Haleakalâ High Altitude Observatory, and the Proposed Advanced Technology Solar Telescope

The summit of Haleakalâ has important cultural significance to Native Hawaiians. Cultural assessments performed for the ATST determined that the Haleakalâ summit is one of the most sacred sites on Maui, and the Haleakalâ Crater is known as "where the gods live." The summit was traditionally used by Native Hawaiians as a place for religious ceremonies, for prayer to the gods, to connect to ancestors, and to bury the dead. Native Hawaiians continue to engage in some of these practices at the summit.

The Haleakalâ summit consists of three volcanic cones, and all are partially developed. One volcanic cone includes facilities belonging to the County of Maui, the State of Hawai'i, and the federal government. The second cone houses Haleakalâ National Park's popular visitor outlook. In 1961, Hawai'i Governor William Quinn set aside 18.166 acres on the third volcanic cone, Pu'u Kolekole, as the site of the Haleakalâ High Altitude Observatory (HO). Since this designation by Governor Quinn, the site has been used for astronomical observatories and is the only site at Haleakalâ used for these purposes. The HO currently consists of eight research facilities "for advanced studies of astronomy and atmospheric sciences" owned by UH and managed by the UH Institute of Astronomy (UHIfA).

The HO is located in a conservation district, as categorized by the State Land Use Commission. Land within a conservation district is divided into subzones. SeeHAR § 13–5–10 (1994). The HO is in a "general subzone," which seeks to "designate open space where specific conservation uses may not be defined, but where urban use would be premature." HAR § 13–5–14(a) (1994). Several types of land use are permitted in the general subzone, including astronomical facilities. SeeHAR § 13–5–24 (1994) (listing "[a]stronomy facilities under an approved management plan" as one of the allowable uses in a resource subzone); HAR § 13–5–25 (1994) (stating that "[i]n addition to the land uses identified [for general subzones], all identified land uses ... for the protective, limited, and resource subzones also apply to the general subzone, unless otherwise noted").

Over the past two decades, the proposed ATST was developed through the work of the Association of Universities for Research in Astronomy, the National Solar Observatory, and the National Science Foundation. Astronomers and other scientists determined that there was a world-wide need for a telescope capable of taking high-resolution images of the sun to study its solar magnetic fields and its relation to solar energy, sunspots, and flares. No current or planned ground-based or space-based telescope in the world has this capability. The ATST would consist of an 142.7–feet tall telescope observatory structure, a support and operations building, a utility building, a parking lot, a wastewater treatment plant, and modifications to an existing observatory. In 2004, after studying 72 potential sites, Haleakalâ was chosen as the best site for the ATST because it met or exceeded all requirements.

B. Application for Conservation District Use Permit

The ATST requires a conservation district use permit (CDUP) because the HO is located in a conservation district. On March 1, 2010, UHIfA submitted a conservation district use application (CDUA) to BLNR pursuant to HAR § 13–5–31(a)³ and HAR § 13–5–39(a)⁴ .

The CDUA provided a range of detailed information about the ATST, including a final environmental impact statement (FEIS) and a management plan (MP).

1. Final environmental impact statement

The FEIS⁵ was completed in July 2009 and addressed the environmental impacts associated with the construction and operation of the proposed ATST Project.⁶ The impacts were "analyzed under three alternatives, two action alternatives located within HO: the Mees Alternative (the Preferred Alternative) and the Reber Circle Alternative, and a No–Action Alternative."

The FEIS analyzed the environmental impacts from the ATST in the following categories: (1) land use and existing activities, (2) cultural, historic, and archeological resources, (3) biological resources, (4) topography, geology, and soils, (5) visual resources and view planes, (6) visitor use and experience, (7) water resources, (8) hazardous materials and solid waste, (9) infrastructure and utilities, (10) noise, (11) climatology and air quality, (12) socioeconomics and environmental justice, (13) public services and facilities, and (14) natural hazards.⁷

Most relevant to this appeal are the FEIS's conclusions about the impacts on cultural and visual resources from the construction and operation of the ATST. Regarding the cultural resources category, the FEIS determined:

Construction and operation of the proposed ATST Project at either the Preferred Mees or Reber Circle sites would result in major, adverse, short- and long-term, direct impacts on the traditional cultural resources within the ROI [Region of Influence⁸ ]. No indirect impacts are expected. Mitigation measures would be implemented; however, those measures would not reduce the impact intensity: impacts would remain major, adverse, long-term and direct.

In addition, the FEIS found that "under the No-Action Alternative, there would continue to be major, adverse, long-term, direct impacts to traditional cultural resources."

In the visual resources and view planes category, the FEIS analyzed the impacts from two general viewpoint areas: (1) land within Haleakalâ National Park and (2) various areas on the island of Maui, where the current HO facilities are visible. The FEIS determined that from either the preferred Mees site or the Reber Circle site, the direct impact on visual resources within the Park would be moderate, adverse, and long-term:

No mitigation would adequately reduce this impact. The new structure would be visible to the point of co-dominance with other nearby structures. It would intensify the already developed appearance in its immediate surroundings, and would also appear to increase slightly the amount of horizontal space occupied by structures in views from within the Park. The new structure would not substantially alter the existing visual character visible in any view.

Further, the FEIS concluded that from outside the Park, the impact of building the ATST at either the Mees site or the Reber Circle site "would result in minor, adverse and long-term impact to visual resources[,]" and therefore "[n]o mitigation would be necessary."

The FEIS also analyzed each category for cumulative impacts, defined as "impacts from past, present, and reasonably foreseeable future actions within the ROI ... combined with the potential impacts from the proposed ATST Project." In the cultural resources category, the FEIS found that the cumulative impacts would be major, adverse, and long-term at either site and that implementation of mitigation measures would not reduce these impacts. In the visual resources category, the FEIS found that the cumulative impacts would be major, adverse, and long-term from areas within the Haleakalâ National Park, and negligible, adverse, and long-term from other areas on Maui.

2. Management plan

UHIfA submitted a draft MP with its CDUA on March 1, 2010, and submitted the final MP to...