Sacred Summits -- Legal Protections

From KAHEA: The Hawaiian-Environmental Alliance

Though the legal issues surrounding contentious telescope developments on Mauna Kea and Haleakalā are complex, the law governing appropriate use of the summits is clear:

- The law requires the protection, preservation and conservation of Mauna Kea and Haleakalā through "appropriate management" and promotion of "long-term sustainability and the public health, safety and welfare." (HRS 183C)

- The law requires the state to collect fair market rent on our mountains, for the benefit of the people of Hawai'i. (HRS 171) We know that telescope time can go for as much as $80,000 per night; yet revenues from telescope time are collected by the observatories and remain with the observatories. For decades, summit conservation lands have been leased to some of the wealthiest national governments, institutions, corporations in the world for a mere $1/year.

- The law requires the state to develop comprehensive management plans, (HAR 183C) to be developed by the Hawai'i Department of Land and Natural Resources, and approved by the State Board of Land and Natural Resources (BLNR). In April 2009 (Mauna Kea) and December 2010 (Haleakalā), over protests of community members and cultural practitioners, the BLNR instead rubber-stamped plans written by the lead developer, the University of Hawai'i.

The Conservation District

Mauna Kea and Haleakalā are part of 2 million acres of conservation lands around the Hawaiian islands protected within Hawai'i's conservation district.

Commercial use (and other "non-conforming" uses) of resources within conservation districts in Hawai'i requires a Conservation District Use Permit, or CDUP. Applications for CDUPs are approved or denied by the State Board of Land and Natural Resources (BLNR). The purpose of conservation districts is 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)

Over the years, the BLNR has consistently "rubber-stamped" Conservation District Use Permits (CDUP) for telescope development, without much study of the area or assessment of impacts. On Mauna Kea, two reports by the Hawai'i State Auditor critizized BLNR and the University of Hawai'i, finding management of Mauna Kea "inadequate to ensure the protection of natural resources" and "neglected ...the cultural value of Mauna Kea."

Advocates for Mauna Kea have successfully challenged the "rubber stamp" permits for telescope development on the mountain, and in 2007 won a landmark case in the Third Circuit Court. The judge revoked the Conservation District Use Permit issued by the BLNR for the Keck Outrigger Telescope Project because of inadequate planning, and inadequate protections for cultural and natural resources.

Crown "Ceded" Lands

Mauna Kea and Haleakalā are crown lands, today part of Hawai'i's "ceded lands trust," also known as "public trust lands"--lands of the monarchy prior to 1893 overthrow of the Hawaiian kingdom. These are lands held in trust by the State of Hawai'i, to be managed for the benefit of Native Hawaiians and the public of Hawai'i.

State law requires that fair market rent be charged for any and all leases of "ceded" crown lands in Hawai'i. (HRS 171)

In 40 years of telescopes on the mountain, international astronomy has prospered on our summits. The value of UH-owned patents derived from technology developed just on Mauna Kea was conservatively estimated to be worth $14 million back in 2001. In 2008, a single night of viewing time at the Keck Observatory was valued at $80,000.

In return, the people of Hawai'i receive $1/year in Mauna Kea and $0/year on Haleakalā for this industrial use of this public trust land.

When Governor Lingle took office, Mauna Kea advocates met with her staff and provided an overview of our concerns, including a preliminary fiscal analysis proposing the state charge the international observatories collectively between $45 and $50 million dollars per year for use of Mauna Kea.

If rent or revenue sharing had been collected for the last ten years, just on Mauna Kea, the state would have collected $500 million dollars. One year could fund the entire the University of Hawai`i at Hilo.

Rapid expansion of the industrial footprint in the summit conservation districts has been enabled in part by the artificially low rent charged to developers. On Mauna Kea, the Hawaii State Auditor has found that UH management of summit resources "focused primarily on the development of Mauna Kea and tied the benefits gained to its research program," and that its focus on telescope development has been "at the expense of neglecting the site's natural resources."

The artificially low rent paid on Mauna Kea and Haleakalā results in not enough resources for protecting habitat, cultural sites, endangered species, water quality, and public access on the sacred summit. The State Board of Land and Natural Resources has repeatedly cited inadequate resources as the reason they cannot develop the comprehensive management plan required for the summit conservation district.

We know from varioius environmental studies (including the 2005 NASA EIS), that the impacts of astronomy developments on the cultural and natural resources of our summits have been "substantial, adverse and significant."

- These sweetheart deals on Mauna Kea and Haleakalā translates to millions of dollars denied to important public programs, like schools, roads, hospitals and parks, which benefit people throughout Hawai'i nei.
- The artificially low rent accelerates development, and also ensures that there are not enough resources for protecting habitat, cultural sites, endangered species, water quality, and public access on the sacred summits.
- By some estimates, total rent for leases just on Mauna Kea should be fairly valued at $45 million to $50 million/year.
- Ten years of rent and revenue sharing lost = $500,000,000
- One year of rent and revenue sharing lost = the entire budget of UH Hilo
- State law (HRS 171) requires fair market rent be charged for use of public trust "ceded" lands.

Who pays the price?  We all do.

Management Plans

The law requires a Comprehensive Management Plan when astronomy developments are proposed in the conservation district. A proper planning process begins from baseline information on ecosystems, including habitat, hydrology, vegetation, cultural sites, traditional and customary practice, native species, and geology and lead to a public, community-driven process for designating appropriate land use.  No such planning process has been undertaken. To date, few conservation districts anywhere in the world have been so industrialized with so little basic planning, so few basic studies of ecosystems and resources, and so little assessment of how ecosystems might be impacted by proposed development.

To date, there is no comprehensive management plan in place for Haleakalā meeting the requirements of the Thrid Circuit Court, or the Hawai'i state law (HRS 183). The last valid comprehensive management plan for Mauna Kea was written in 1983, and limits development to 13 telescopes. Today, there are 20 individual telescopes on the summit of Mauna Kea.

In April 2009 and December 2010, the BLNR rubber-stamped plans written by the lead developer, the University of Hawai'i. In approving these development plans, the BLNR literally "paved the way" for the largest expansion of industrial land use on these summits in nearly a decade--the 18-story Thirty Meter Telescope (TMT) on Mauna Kea, and the 14-story Advanced Technology Solar Telescope (ATST) on Haleakalā, and supporting roads, construction staging area (batch plant), parking, people, and vehicle traffic.

We believe our sacred summits deserve a better future.

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Related:

Telescope: For OHA, it’s all About the Rent Money

Crabbe: OHA Wants 'percentage of gross receipts' from Telescope