CDUP Contested Case

/CDUP Contested Case

All University of Hawaii-managed lands on Maunakea, including the site for TMT, are in a conservation district, which requires a Conservation District Use Permit approved by the Hawaii Board of Land and Natural Resources (BLNR). Following a contested case hearing that took seven days over the course of two months, the BLNR issued a CDUP to the University of Hawaii at Hilo for the construction of TMT on Maunakea.

Work on the telescope on Maunakea was halted in 2015 when the Hawaii Supreme Court invalidated the Conservation District Use Permit on procedural grounds. That permit had been issued by the Board of Land and Natural Resources (BLNR) to the University of Hawaii Hilo to build TMT on Maunakea. The Supreme Court returned the case to the Hawaii Circuit Court and instructed that a new contested case hearing be conducted. The contested case got underway in October 2016. Following 44 days of testimony by 71 witnesses over five months, the hearing concluded in early March 2017.
After studying all testimony and data, State Hearings Officer and former Judge Riki May Amano released a 305-page report on July 26, 2017, recommending that a Conservation District Use Permit (CDUP) be issued by the Board of Land and Natural Resources for the TMT project.

In her report, Amano said TMT’s proposed land use will “not cause substantial adverse impact to existing natural resources within the surrounding area, community, or region” and “will not be materially detrimental to the public health, safety, and welfare.”

Amano also concluded that the proposed land use “reasonably protects identified native Hawaiian rights and practices.”

Amano also noted in her report that the entire process relating to the conservation district use application for the development of the TMT Project “completely negates any argument that the University and TIO could have the requisite specific ill-intent to ‘mistreat’ Mauna Kea.

To the contrary, the participation by the University and TIO in the preparation and consideration of the CDUA and their participation in this proceeding demonstrates the complete opposite: an intent and commitment to participate in a legal process designed to carefully consider the merits of the development of the TMT Project consistent with the eight criteria set forth for a conservation district use permit on Maunakea

On Thursday, September 28, the State Land Board announced its decision to approve the Conservation District Use Permit to build TMT on Maunakea. In its decision, the Land Board determined that the Thirty Meter Telescope “will not pollute groundwater, will not damage any historic sites, will not harm rare plants or animals, will not release toxic materials, and will not otherwise harm the environment. It will not significantly change the appearance of the summit of Mauna Kea from populated areas on Hawaii Island.
“The TMT site and its vicinity were not used for traditional and customary native Hawaiian practices conducted elsewhere on Mauna Kea, such as depositing piko, quarrying rock for adzes, pilgrimages, collecting water from Lake Waiau, or burials. The site is not on the summit ridge, which is more visible, and, according to most evidence presented, more culturally important than the plateau 500 feet lower where TMT will be built.”

To read the decision, click here.

The BLNR’s decision was subsequently appealed to the Hawaii State Supreme Court. On Tuesday, October 30, 2018, the Hawaii Supreme Court, by majority decision, issued an opinion affirming the Board of Land and Natural Resources’ decision to issue a CDUP for construction of the Thirty Meter Telescope on Maunakea.

To read the decision, click here

LEARN MORE ABOUT THE CDUP CONTESTED CASE

TMT Meets the Eight Criteria for the Conservation District Use Permit

On September 28, 2017, the Board of Land & Natural Resources (BLNR) issued its decision to approve a Conservation District Use Permit (CDUP) that would allow construction of the Thirty Meter Telescope on Maunakea. In its findings of fact, conclusions of law, decision and order, BLNR stated that the TMT Project is consistent with the eight criteria required for the granting of the CDUP. These criteria include:

The proposed land use is consistent with the purpose of the conservation district.

Findings (excerpts):

“The proposed use within the already-developed Astronomy Precinct is consistent with the purpose of the Conservation District to conserve, protect, preserve and promote the long-term sustainability of the surrounding areas within the Mauna Kea Science Reserve.”

– Board of Land & Natural Resources, 2017 Decision & Order, page 214

 

“Given the TMT Project’s design, mitigation efforts, planned financial contributions to the management of MKSR, and consistency with the objectives and provisions of the applicable plans, the TMT Project will conserve, protect and promote these unique and important astronomical natural resources of the State.”

– Board of Land & Natural Resources, 2017 Decision & Order, page 215

“The proposed land use is consistent with the objectives of the subzone of the land on which the use will occur.”

Findings (excerpts):

“As an astronomy facility, the TMT Project falls under an appropriate use and is consistent with the purposes of the Resource subzone.”

– Board of Land & Natural Resources, 2017 Decision & Order, page 216

 

“Furthermore, the proposed use does not significantly, adversely, or cumulatively impact the natural resources present in the Mauna Kea Summit Region Historic District, alpine stone desert, or other land area designation that encompasses either the breadth or endemic suite of resources present on Mauna Kea.”

– Board of Land & Natural Resources, 2017 Decision & Order, page 217

“The proposed land use complies with provisions and guidelines contained in chapter 205A, HRS, entitled ‘Coastal Zone Management’, where applicable.”

Findings (excerpts):

“As noted in the findings of fact above, the TMT Project will have no significant or adverse impact on water resources, including no significant impacts upon Lake Waiau and ground water, and no significant effects upon the surrounding areas through surface water runoff or through wastewater (which will be collected and transported off the summit for treatment and disposal).”

– Board of Land & Natural Resources, 2017 Decision & Order, page 218

“The proposed land use will not cause substantial adverse impact to existing natural resources within the surrounding area, community, or region.”

Findings (excerpts):

“In the context of the existing summit area cumulative impacts—and under the assumption that such cumulative impacts will continue—the TMT Project does not create or cause substantial adverse impacts to existing natural resources in the applicable area. The existing uses and resources are already committed to astronomical uses and objectives, and otherwise based upon commitments of the CDUA and University proposals, several facilities will be removed thereby significantly reducing substantial existing adverse impacts on the more sensitive and visible summit ridge areas within the Astronomy Precinct.”

– Board of Land & Natural Resources, 2017 Decision & Order, page 219

 

“The TMT Observatory will not tip the balance of any existing impact from a level that is currently less than significant to a significant level.”

– Board of Land & Natural Resources, 2017 Decision & Order, page 220

 

“Petitioners and Opposing Intervenors did not offer reliable, probative, substantial, and credible evidence, whether from witnesses or exhibits, that would support the conclusion that the TMT Project would cause substantial adverse impact to existing plants, aquatic life and wildlife, cultural, historic, and archaeological sites, minerals, recreational sites, geologic sites, scenic areas, ecologically significant areas, or watersheds.”

– Board of Land & Natural Resources, 2017 Decision & Order, page 221

 

“No existing critical habitat, natural resources, or customary and traditional native Hawaiian practice can be considered endangered or substantially impacted in the specified area for the TMT Project site.”

– Board of Land & Natural Resources, 2017 Decision & Order, page 222

 

“There is no credible proof that any historic feature, traditional practice, or viewplane will be substantially or adversely impacted by construction at the proposed TMT Project site.”

– Board of Land & Natural Resources, 2017 Decision & Order, page 222

 

“While the TMT Project’s location in the Northern Plateau section of Area E will introduce a new visual element in that area for certain individual practitioners which may affect the setting in which certain practices occur; the reliable, probative, substantial, and credible evidence demonstrates that the TMT Project itself and otherwise in conjunction with its mitigation efforts, will not cause substantial adverse impact to recognized historic traditional and cultural practices.”

– Board of Land & Natural Resources, 2017 Decision & Order, page 223

 

“As noted in the findings of fact above, numerous proposed mitigation measures for the TMT Project are specifically designed to address the environmental and cultural impacts of the TMT Project, including, but not limited to:

  1. The site selection and physical design of the project itself and related infrastructure to mitigate its visual, cultural and environmental impact;
  2. The TMT Access Way design;
  3. Implementing a cultural and natural resources training program;
  4. Developing educational exhibits;
  5. Restoring of Puʻu Poliʻahu;
  6. Providing a sense of place within the TMT facilities;
  7. Providing financial contributions to support cultural programs;
  8. Implementing specific cultural and community outreach efforts;
  9. Implementing cultural observance days;
  10. Continuing consultation with the State Historic Preservation Division and Kahu Kū Mauna Council regarding the protocols for the relocation of the modern shrine at the 13N site;
  11. Implementing arthropod monitoring;
  12. Working with OMKM to develop and implement a wēkiu bug habitat restoration study;
  13. Developing and implementing an invasive species prevention and control program; and
  14. Continuing consultations with cultural practitioners.”

– Board of Land & Natural Resources, 2017 Decision & Order, page 223

 

“For these and all other reasons noted in the findings above, the TMT Project will substantially improve the interests of the surrounding area, community, region, and public welfare by advancing public higher education in the State, ensuring that the University remains a premier institution for astronomy research throughout the world, and will bring other significant educational, economic and scientific benefits to Hawaiʻi and its residents.”

– Board of Land & Natural Resources, 2017 Decision & Order, page 225

“The proposed land use, including buildings, structures, and facilities, shall be compatible with the locality and surrounding areas, appropriate to the physical conditions and capabilities of the specific parcel or parcels.”

Findings (excerpts):

“The TMT Project will not be visible from the culturally sensitive areas of the summit of Kūkahau‘ula, Lake Waiau, Pu‘u Līlīnoe, and Puʻu Wēkiu.”

– Board of Land & Natural Resources, 2017 Decision & Order, page 226

“The existing physical and environmental aspects of the land, such as natural beauty and open space characteristics, will be preserved or improved upon, whichever is applicable.”

Findings (excerpts):

“Through significant mitigation measures discussed above, including the location of the telescope, reduction of the dome to the smallest size physically possible, the finishing of the dome and supporting structure to reduce the visibility of the structures, and other measures, the visual impacts for the TMT Project have been reduced to the greatest extent feasible.”

– Board of Land & Natural Resources, 2017 Decision & Order, page 228

 

“The size, dimensions and dome structure were conceived to minimize the structure’s impacts and to enhance the natural beauty of the surrounding areas to the extent feasible.”

– Board of Land & Natural Resources, 2017 Decision & Order, page 229

“Subdivision of land will not be utilized to increase the intensity of land uses in the conservation district.”

Findings (excerpts):

“The TMT CDUA does not ask for a subdivision…”

– Board of Land & Natural Resources, 2017 Decision & Order, page 230

 

“The sublease of a parcel within the Astronomy Precinct of the Mauna Kea Science Reserve that was previously planned and specifically identified as an appropriate location for a Next Generation Large Telescope, such as the TMT Project, does not constitute a division of a parcel into more than one parcel for the purpose of increasing the intensity of land use within the conservation district…”

– Board of Land & Natural Resources, 2017 Decision & Order, page 233

“The proposed land use will not be materially detrimental to the public health, safety, and welfare.”

Findings (excerpts):

“… Petitioners’ and Opposing Intervenors’ position that the TMT Project will be materially detrimental to the public health, safety, and welfare has not been supported by reliable, probative, substantial, or credible evidence, and is far too speculative to be given any significant weight.”

– Board of Land & Natural Resources, 2017 Decision & Order, page 235

 

“The public will not be detrimentally impacted, and the alleged psychological impact on certain narrow portions of the general population would be isolated and capable of being mitigated. Surveys referenced during the hearing demonstrated that a majority of residents supported the construction of the TMT Project, notwithstanding the protests of a select few who claim political or other reasons outside of the traditional concepts of public health, safety, and welfare.”

– Board of Land & Natural Resources, 2017 Decision & Order, page 235

 

“The reliable, probative, substantial, and credible evidence demonstrates that the TMT Project will inject money into the local economy and will bring with it job growth, educational prestige and opportunities, and significant advancement of knowledge. The Project will benefit the “public welfare.”

– Board of Land & Natural Resources, 2017 Decision & Order, page 236

To read the complete decision, click here.