January 29, 2016 Articles

Volcanic Justice: Procedural Due Process for Mauna a Wakea

Issuing a permit to construct a telescope on Mauna Kea, without a requested contested case hearing, violated procedural due process.

By Mária Zulick Nucci – January 29, 2016

In Mauna Kea Anaina Hou v. Board of Land & Natural Resources, No. SCAP-14-0000873 (Haw. Dec. 2, 2015), the Supreme Court of Hawaii held that the state’s Board of Land and Natural Resources (BLNR) violated procedural due process by issuing a Conservation District Use Permit (CDUP) for construction of the Thirty Meters Telescope (TMT) on Mauna Kea, a volcanic mountain on the island of Hawaii, before holding a contested case hearing requested by project opponents. The court’s decision is the most recent in a line of administrative, judicial, and other governmental actions regarding the mountain, and the court emphasized the fundamental due process requirements of the right to be heard at “a meaningful time and in a meaningful manner” and of “both the reality and appearance of justice.” Mauna Kea Anaina Hou, slip op. at 5 (citations omitted).

The history of the case could be viewed as dating to 1893, when United States and European powers removed the Native Hawaiian government. Upon statehood in 1959, ceded lands were returned to the new state government to be held in public trust. Colorado College, Indigenous Religious Traditions, Mauna Kea. In 1968, the state leased space on the mountain to the University of Hawaii for 65 years, chiefly for research by the university’s Institute for Astronomy. In the 1990s, those parties were developing a master plan for the mountain, but in 1998 an audit report stated that the university did not balance development with archeological, cultural, and environmental concerns, noting that Native Hawaiians, who visited Mauna Kea for religious reasons, complained about development and trash deposits as desecrations. In Native Hawaiian religion and culture, Mauna Kea is known as Mauna a Wākea, “The Mountain of Wakea,” first-born son of Wākea, his father, and Papa, his mother, further to the belief in the sky as father and Earth as mother, who created what is now known as the Big Island, with Mauna Kea at its center. U.S Geological Survey, Hawaiian Volcano Observatory, Mauna Kea: Hawai’i’s Tallest Volcano. Disputes over telescopes on the mountain continued: In 2006, after the master plan issues, litigation, and protests, the National Aeronautics and Space Administration abandoned plans for development of up to six “outrigger” scopes. Alexandra Witze, “The Mountain-Top Battle over the Thirty Meter Telescope,” Nature, Sept. 29, 2015.

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