In re Contested Case Hearing Re Conservation Dist. United Statese Application (Cdua) Ha-3568 for the Thirty Meter Telescope At the Mauna Kea Sci. Reserve
| Decision Date | 30 November 2018 |
| Docket Number | SCOT-17-0000812,SCOT-17-0000777,SCOT-17-0000811 |
| Court | Hawaii Supreme Court |
| Parties | 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, HĀMĀKUA, HAWAI'I, TMK (3) 404015:009 |
***FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER***
APPEAL FROM THE BOARD OF LAND AND NATURAL RESOURCES
(BLNR-CC-16-002 (Agency Appeal))
1
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 loselegal 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 degradationto 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. Thedegradation 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 substantiallyadversely impacted is contrary to accepted norms of the environmental rule of law.
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. Thedegradation 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 impactsthat 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...
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