Kilakila ‘O Haleakalā, represented by the Native Hawaiian Legal Corporation, has filed four lawsuits challenging the construction of the massive advanced technology solar telescope (ATST) – now called the DKIST – project that includes a 142.7 foot tall building and a wastewater treatment plant on the summit of Haleakalā. We have won two of them, and are awaiting decisions from the Hawai`i Supreme Court as to the other two.
I. The Four Cases
In December 2010, the board of land and natural resources (BLNR) voted to grant a conservation district use permit for the ATST project without first holding a required contested case hearing, which Kilakila ‘O Haleakalā had requested. Kilakila ‘O Haleakalā appealed that decision. The Hawai`i Supreme Court ruled that the Board should not have voted without giving Kilakila ‘O Haleakalā the opportunity to present evidence and cross-examine the University’s witnesses See Kilakila ‘O Haleakalā v. Bd. of Land & Natural Res., 131 Hawai’i 193, 317 P.3d 27 (2013). In February 2014 that permit was voided.
In December 2010, the BLNR also approved a management plan for the summit of Haleakalā. Kilakila ‘O Haleakalā sued because the University failed to prepare an environmental impact statement for the management plan. The University had admitted that the ATST project, which was part of the management plan, would have “major, adverse, short- and long-term, direct impacts on the traditional cultural resources.” The Supreme Court heard oral arguments in that case in December 2014. A decision should be issued within the next couple of months.
After voting to grant the December 2010 permit, the BLNR then held an after-the-fact permit to rubberstamp its approval. BLNR appointed a hearing officer.
In 2012, Kilakila ‘O Haleakalā learned that the University had been applying political pressure on the hearing officer. Kilakila ‘O Haleakalā requested public documents from the University through the state’s freedom of information act, HRS chapter 92F. The University illegally withheld the documents. Kilakila ‘O Haleakalā sued – and won. Circuit court judge Rhonda Nishimura ordered the University to hand over the documents. Internal documents revealed that the Governor Abercrombie’s office and U.S. Senator Inouye’s office exerted political pressure on the BLNR Chair to approve the ATST project.
Senator Inouye’s Chief of Staff, Jennifer Sabas, acting on behalf of the University, along with the governor’s chief of staff met behind closed doors with the chair of the BLNR “to discuss the telescope, hearings officer and funding issue” – during the course of the after-the-fact hearing.
Soon after that – and while the contested case hearing was still on-going – the BLNR allowed some construction activities authorized by the December 2010 permit to start.
In November 2012, BLNR once again granted a conservation district use permit for the ATST project. Kilakila ‘O Haleakalā appealed again. The Hawai`i Supreme Court heard oral arguments in April. A decision is expected by the end of the year.
II. Basic Facts
The Haleakalā Summit is Culturally Significant and Rich in Natural Beauty.
The summit area of Haleakalā is considered a significant traditional cultural site. The summit area is listed on the National Register of Historic Places. According to the University, “The large number of remnant archaeological sites indicates that the area was used and therefore held significance during traditional times.” A number of traditional cultural practices are conducted in the Haleakalā summit area.
The summit of Haleakala is also a site of spectacular natural beauty. The telescope is being built within a few hundred yards of the Haleakalā National Park. The purpose of Haleakalā National Park includes preserving the area’s scenic character and cultural resource values.
B. The Applicant Sought BLNR Approval to Construct at the Summit.
The ATST project includes: the telescope; a support and operations building adjacent to the observatory; a utilities building; a parking lot; a wastewater treatment plant; a new electrical transformer; three ice storage tanks; and a diesel generator. The solar telescope would be encased within a facility that would stand 142.7 feet tall and stretch 84 feet in diameter. The ATST telescope building would exceed the height of existing facilities in the area by about fifty feet. The 76.3 foot high support and operations building next to the ATST would contain: a large docking bay, a 20-ton crane, equipment storage, laboratories, a large-scale platform lift, a helium compressor, a vacuum pump and liquid nitrogen tanks. The support and operations building itself would be bigger than some other structures in the area. The utility building for the ATST project would contain a 300 KVA generator, an 80-ton chiller, a 15-ton chiller, a 10-ton heat pump condenser unit, two ventilation fans, an air compressor, a vacuum pump and three uninterruptible power supply units. The entire ATST project would occupy a footprint of .74 acres. The ATST project would also require the handling and storage of hazardous materials including: hydrochloric acid, potassium hydroxide, nitric acid, stripping/ cleaning effluent, aluminum, silver, silicon nitride, nickel chromium, propylene glycol Dynalene HC heat-transfer fluid, compressed helium and nitrogen, and diesel fuel.
The ATST project would take place within an area that is already forty percent developed with roads, buildings, parking areas and walkways. .
C. The Applicant and Its Partner Repeatedly Admitted that the ATST Project Would
Have Substantial Impacts Which Cannot Be Mitigated.
In its conservation district use application, the University admitted that construction of the ATST project would have a substantial adverse impact on cultural resources and viewplanes. It admitted that the
ATST Project would have a substantial (major) adverse impact on cultural resources. Specifically, the proposed ATST Project would be seen as culturally insensitive and disturb traditional cultural practices conducted within the Region of Influence (ROI), which includes parts of HALE. Noise and associated construction-related disturbances would also have a major, adverse impact on cultural practices within the ROI. No mitigation would eliminate these impacts, but numerous mitigation measures would be employed to reduce such impacts as much as possible.
It concluded that “the impact on visual resources at the Pu`u `Ula`ula (Red Hill) Overlook from the construction and operation of the proposed ATST Project is substantial because of its prominence in relatively close-up views.” The ATST “will cause a substantial visual impact on visitors to the summit area of [the National Park].”
A chart in the final environmental impact statement (FEIS) for the ATST project summarizing the cumulative impacts from the addition of the proposed ATST project identified major, adverse and long-term impacts to: cultural, historic, archaeological resources; visual resources and view planes; and visitor use and experience. The FEIS unequivocally concluded that the construction and operation of the ATST project “would result in major, adverse, short-and long-term direct impacts on the traditional cultural resources” in the summit area. “Overall, there is a belief that to go forward with the proposed ATST Project would result in the desecration of a sacred site, with some equating the effects to building an observatory next to the Wailing Wall in Jerusalem or within the city of Mecca.” A report in the FEIS concluded: “Based on the information gathered during the course of this study and presented in this report, the overwhelming evidence, from a cultural and traditional standpoint, points toward a significant adverse impact on Native Hawaiian traditional cultural practices and beliefs.” The FEIS stated: “Changes in the viewshed during the operations phase would result in major, adverse and long-term impacts on the visitor use and experience from locations where the ATST project would be prominently seen.”
The applicant’s partner, the National Science Foundation, which is funding the ATST, concluded that:
At the Preferred Mees site, there will also be a major, adverse long-term impact on visual resources for [Haleakala National Park] visitor use and experience once the ATST facility is erected. The fully executed facility will be visible from Pu’u Ula’ula Overlook, the western edge of the Haleakala Visitor’s Center, the summits of Pa Ka’oao and Magnetic Peak, and along the Park road corridor nearing [Haleakala High Altitude Observatory Site]. These impacts will last for the life of the ATST, will continue to affect visitor expectations of the summit natural vistas, and no mitigation will adequately reduce the intensity of this impact.
It also concluded: “Construction and operation of the ATST project . . . would result in major, adverse, short- and long-term, and direct impacts on the traditional cultural resources” in the summit area. “Mitigation measures would be implemented, and while helpful, they would not, however, reduce the impact intensity to moderate: impacts would remain major, adverse, long-term and direct.”
D. Other Evidence Showed that the ATST’s Impacts Would Be Substantial.
The applicant’s conclusion that the impact of the ATST project would be substantial was buttressed by the National Park Service, a former planning director, a professor of Hawaiian studies and the two previous superintendents of Haleakalā National Park. The National Park Service “believes that both during construction (short-term) and operation (long-term) the ATST will have a major adverse impact to the viewshed.” The BLNR itself concluded: “The cumulative effects on traditional cultural resources of past actions combined with the ATST Project would be major, adverse, long-term and direct.”
III. Reasons the Permit Should be Invalidates.
Kilakila ‘O Haleakalā argues that the 2012 conservation district use permit should be invalidated because the BLNR’s rules prohibit construction of a project that would have a substantial adverse impact to natural and cultural resources. The University admits that the ATST project will have a substantial adverse impact. The University also admits that its “mitigation” measures will not reduce the intensity of the impact to less than substantial. Approval of the ATST project undermines the purposes of the conservation district, which is supposed to tolerate the least amount of development in the entire state. The BLNR violated the law by considering economic factors in its analysis – which BLNR’s rules prohibit. In addition, the political pressure placed on the BLNR undermines basic notions of fairness. The deck was stacked from the beginning.