HAWICA: No EIS Required For Haleakala Telescope

by Robert Thomas, Inverse Condemnation, June 9, 2014

The high mountains of Hawaii, with their altitude and clear air, are some of the best places in the entire planet to build the telescopes which allow us to look beyond our world into deep space. But given that it seems that every development in Hawaii is subject to attack -- even those you believed might be welcomed -- perhaps it is no surprise that even a star trek is not immune.

In Kilakila O Haleakala v. University of Hawaii, No. CAAP-13-0000182 (June 9, 2014), the Hawaii Intermediate Court of Appeals rejected a challenge under Hawaii's environmental review statute to the State's approval of the high-tech telescope up on the top of Maui's Haleakala. Another part of this case was decided last year by the Hawaii Supreme Court, which held that an appeal to a trial court under the Administrative Procedures Act lies from an agency's decision to grant a use permit even though it did not hold a contested case, if it has not resolved a third-party's demand for a contested case.

The latest decision is on the merits. The ICA concluded the Board of Natural Resources was correct when it determined that the telescope's Management Plan would not have a significant impact on the environment, and thus no Environmental Impact Statement need be prepared:

Molokai Homesteaders and Kepoo essentially reasoned that the agency determining that a significant impact was not likely could not have considered the appropriate facts since the proposed actions involved irrevocable commitments of natural resources. The proposed action in both cases, the withdrawal and consumption of large amounts of water, itself involved a commitment of natural resources. Whether the Management Plan in this case involves a similar commitment is less clear. At its heart, the Management Plan exists to conserve resources rather than commit them to a specific purpose. Moreover, the Management Plan's EA appears to suggest the routine management of the Observatory Site involves some commitment of cultural resources. . . .

. . . .

Molokai Homesteaders and Kepoo found the agency failed to take a hard look at the appropriate environmental considerations where the proposed action created a new, or additional, commitment of natural resources. Rather than making additional commitments of natural resources, the Management Plan would mitigate existing commitments.

Slip op. at 14-15 (footnote and block quote omitted).

The ICA rejected the argument that the Superferry decision required the agency to consider the secondary impacts of the project, concluding that the difference between this case and Superferry was that here, the underlying telescope project did undertake an EIS and a cultural impact statement. Id. at 16.

Is an appeal to the Hawaii Supreme Court in the cards? With a reported 90% win rate (as noted by U. Hawaii law prof David Callies) parties such as the loser here enjoys in the Supreme Court, would you bet against it?

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PDF: Kilakila O Haleakala, v. University of Hawaii, No. CAAP-13-0000182 (Haw. App. June 9, 2014)