March 31, 2015. TMT Cease and Desist Letter to Gov. Ige and BLNR Acting Chair Carty Chang

URGENT MATTER
March 31, 2015
SENT VIA EMAIL & CERTIFIED U.S. MAIL

Governor David Y. Ige
State of Hawai‘i
Executive Chamber, State Capitol Honolulu, HI 96813 gov.ige@hawaii.gov

Carty Chang, Acting Chair, Board of Land and Natural Resources and Acting Director, Department of Land and Natural Resources
1151 Punchbowl Street, Rm. 131
Honolulu, HI 96813
dlnr@hawaii.gov

RE: Request for an Immediate Cease and Desist Order and a Stay on Construction for the Thirty Meter Telescope on Mauna Kea

Aloha e Governor a me Acting Chair/Director,

This is a request for an immediate cease and desist order and a stay on construction being made of the State of Hawai‘i Department of Land and Natural Resources (“DLNR”) and Board of Land and Natural Resources (“BLNR”) to maintain the status quo of the public lands of Mauna Kea pending; 1) the investigation of potential violations of present construction activities, 2) the conclusion of the judicial review and appeal process of the proposed Thirty Meter Telescope (“TMT”), 3) the completion of a Ka Pa‘akai assessment by DLNR/BLNR in respect to traditional and customary Native Hawaiian rights on Mauna Kea, 4) an investigation and determination by the Hawai‘i State Ethics Commission regarding violations of §171-4 and Chapter 84, and 5) the completion of an Environmental Impact Statement (“EIS”) as part of the HRS Chapter 343 environmental assessment process currently underway for proposed new general leases by the Lessee/Sublessor, University of Hawai‘i (“UH”).

The threat of irreparable harm is real and immediate for the public land trust, environment, significant natural and cultural resources on Mauna Kea, and Native Hawaiian traditional and customary rights. The source of the imminent harm is the commencement of grading, excavation, groundwork, and construction activities on the top of Mauna Kea for the planned TMT by the Thirty Meter Telescope International Observatory LLC (“TIO”), (fka Thirty Meter Telescope Observatory Corporation). This mountain, also referred to as Mauna a Wäkea, is considered the most sacred and environmentally sensitive land in the Hawaiian Islands.

This letter also serves as a request to investigate potential violations with the present construction activities that have just recently occurred. On March 27, 2015, I personally witnessed that heavy construction equipment had done some grading at the site despite having snow and ice covering portions of the area. See Figure 1. Also, it appears that no culturalmonitor was present at the time this groundwork had taken place. Likewise, if there were/are any inadvertent burials, cultural resources, and/or historic sites covered by the snow, they would not be visible to the construction crew, archaeologist, or cultural monitor. Thus, causing irreparable harm and damage to these cultural resources. It also appears that the area graded for the staging area of the equipment extends outside the permitted grading boundaries of the access road. In addition, the contracted security personnel are uninformed of their legal parameters and Native Hawaiian traditional and customary rights in this area of Mauna Kea. This has resulted in the interference and prevention of such practices and rights of cultural practitioners. Therefore, it is further requested that such activities cease and desist until these matters are investigated.

If construction activities are allowed to proceed and the court’s decision upholds the claims of the present appeals, it would be impossible to return the landscape to its natural state.1 Instead, there would be a very visible and permanent scarring upon the natural environment and cultural landscape that would be clearly visible to the thousands of visitors and residents who come to the summit of Mauna Kea each year. Once this work is undertaken, it can never be undone.

The proposed construction activities of grading and excavation of the natural environment and distinguished cultural landscape on Mauna Kea would cause irreversible adverse impacts upon five or more acres of previously undeveloped land. This area includes unique natural, geological, volcanic, glacial, lava tubes, and cultural features. As demonstrated in Figures 2 & 3, partial grading, leveling, excavating, and drilling at the site was done on two separate occasions -- for the geotechnical testing in August-October 2013 and the ground breaking event of October 7, 2014. This irreparable damage and permanent scarring of this area is now visible from the summit view plane. The extent of this physical and permanent destruction would drastically increase with further construction activities and groundwork.

Should the appeal process prove unfavorable to the Appellees (State of Hawai‘i, BLNR, DLNR, & UH) -- the public land trust, Native Hawaiians and the sacred and environmentally sensitive ‘äina itself, would have suffered incalculable and irreversible damage that otherwise could have been avoided.

In addition, BLNR/DLNR have a constitutional and statutory duty to preserve the public's right to ensure that the public trust is not degraded. See Haw. St. Const. Article XI, Section 1. However, that legal duty and substantive and procedural due process of law was breached in the BLNR’s consent of the TMT Sublease, CDUP, and related actions. See also Haw. St. Const. Article I, Section 5, US Const. Amendment XIV. For these reasons, and based on all of the other evidence and the arguments made during the BLNR proceedings, including, but not limited to the oral and written testimonies, we contend that the public trust doctrine as outlined in the Hawaii State Constitution Article XI, Section 1 has been violated.

Prior to consenting to the CDUP, TMT Sublease, and related actions pertaining to Mauna Kea, BLNR/DLNR failed to complete an independent Ka Pa‘akai analysis to assess the impacts of the TMT Sublease and CDUP HA-3568 would have on customary and traditional practices as stipulated in the State Supreme Court decision rendered in Ka Pa‘akai O Ka ‘Aina v. Land Use Commission (Ka Pa‘akai), 94 Hawai‘i 31, 47, 7 P.3d 1068, 1084 (2000). Based upon this ruling, BLNR/DLNR have a duty to preserve and protect traditional and customary Native Hawaiian rights. Likewise, BLNR/DLNR have a constitutional responsibility to conduct detailed inquiries into the impacts of those rights to ensure that proposed uses of land and water resources are pursued in a culturally appropriate way. See Haw. St. Const. Article XII, Section 7. In addition, agencies must make these inquiries independent of the developer or applicant. How can these particular rights and practices be protected if they are not known by the State agency that’s entrusted to protect them? As a result, actions of the State and TIO, including the construction contractor and security on site, are violating both State and Federal constitutional and statutory provisions. See also Haw. St. Const. Article I, Section 4, US Const. Amendment I. As of this date, BLNR/DLNR have not completed an independent Ka Pa‘akai assessment for the lands of Mauna Kea that are under its jurisdiction and authority.

Likewise, BLNR/DLNR failed to follow and enforce its own rules and procedures stipulated by Hawaii Revised Statues, in particular §171-4 and Chapter 84. The BLNR erred by not having former Hawai‘i Island Board member Rob Pacheco, considered a State “employee” in the capacity as a Board member, recuse or disqualify himself from voting on and participating in the discussion of Agenda Items D-5 and D-19 at the June 27, 2014 meeting due to a conflict of interest that was previously identified. At this meeting, Mr. Pacheco actively participated in the discussion, made the motions to approve, and voted upon both of these agenda items. As a result, these BLNR actions were in violation of HRS §171-4 as noted below (emphasis added):

§171-4 Board of land and natural resources; terms and qualifications of members of the board; organization; expenses.
(b) ... Any member having any interest, direct or indirect, in any matter before the board shall disqualify oneself from voting on or participating in the discussion of the matter.
Consequently, the Sublease is considered voidable as stipulated by HRS Sections 84-16 and 84-19 as noted below (emphasis added):
§84-16 Contracts voidable. In addition to any other penalty provided by law, any contract entered into by the State in violation of this chapter is voidable on behalf of the State;
§84-19 Violation. (a) Any favorable state action obtained in violation of the code of ethics for legislators or employees and former employees is voidable in the same manner as voidable contracts as provided for under section 84- 16; and the State by the attorney general may pursue all legal and equitable remedies available to it.

Mr. Pacheco failed to disclose that as owner and president of Hawaii Forest & Trail, he has a business interest and an extraordinary association with the Applicant - UH. He was awarded and is presently in possession of commercial use permits through the Office of Mauna Kea Management (“OMKM”) of the University of Hawaii at Hilo (“UHH”) to conduct commercial tours to the summit of Mauna Kea. See Conflict of Interest Diagram.

In addition, Mr. Pacheco previously served on the Mauna Kea Management Board (“MKMB”) as a chair, vice-chair, and member from 2000 to 2007 in which he developed an extraordinary relationship with the Applicant, including but limited to the personal interaction with the OMKM directors and staff, UH administrators and staff, attorneys representing the Applicant, as well as others associated with the Applicant. This board is under the authority of the OMKM/UHH and its members are nominated by the UHH Chancellor and approved by the UH Board of Regents. The MKMB and its members serve as an integral part of the OMKM’s review process for both minor and major projects proposed for the Mauna Kea Science Reserve. Consequently, Mr. Pacheco’s extraordinary association with the Applicant and its representatives as a former member of the MKMB would further amplify his conflict of interest. Id.

As a BLNR member, on April 8-9, 2009, it was noted that Mr. Pacheco previously recused himself “because his business touches Mauna Kea and may pose a conflict” when the Applicant (UH) submitted the Mauna Kea Comprehensive Management Plan to the BLNR for approval. See BLNR Minutes 4/8-9/2009 pp. 1-3. In addition, on December 13, 2013, Mr. Pacheco recused himself due to a self-declared conflict of interest pertaining to UH’s request for new general leases and easements for the lands on Mauna Kea as noted in Agenda Item D-15.2 When an inquiry was posed to BLNR Chair William Aila, Jr. as to the reason for Board member Pacheco’s recusal from this particular agenda item, “Chair Aila confirmed that he stated he had a conflict, having to do with his commercial business.” See BLNR Minutes 12/13/13, pp. 9-11. It was clearly established that Mr. Pacheco had a conflict of interest, as such recused himself at these BLNR meetings, when action items pertaining to Mauna Kea were submitted by the Applicant - UH.

However, at the June 27, 2014 BLNR meeting, Mr. Pacheco failed to recuse himself from BLNR actions regarding the same action items from the same Applicant pertaining to Mauna Kea listed as Agenda Item D-5.3 See BLNR Minutes 6/27/14, pp. 8-15 Correspondingly, he failed to recuse himself from BLNR actions on June 27, 2014 pertaining to the Board action to consent to the TMT Sublease noted as Agenda Item D-19.4 Id.

Thereby, as the result of these violations of State statutory provisions, TIO has a voidable Sublease and should not be permitted to commence any construction activities until this matter is resolved. This unlawful action by the previous Board warrants you to rectify the matter so that the State constitutional and statutory provisions are upheld by the oath of office taken when you are discharging your duties in the capacity as a public officer. Since this matter is being brought to your attention, it would be appropriate for you to also forward this matter to the Hawaii State Ethics Commission for further investigation and determination.

Therefore, you are called upon as Governor and Acting Chair/Director to uphold the integrity of BLNR and the Hawaii State Constitution, Article XIV – Code of Ethics as specified below (emphasis added),
The people of Hawaii believe that public officers and employees must exhibit the highest standards of ethical conduct and that these standards come from the personal integrity of each individual in government. To keep faith with this belief, the legislature, each political subdivision and the constitutional convention shall adopt a code of ethics which shall apply to appointed and elected officers and employees of the State or the political subdivision, respectively, including members of the boards, commissions and other bodies.

Also, BLNR erred in consenting to the TMT Sublease that was issued for a project that extends beyond the life of the existing General Lease No. S-4191 for the Mauna Kea Science Reserve and Easement S-4697 which both expire in 2033 along with General Lease No. S-5529 for the Hale Pohaku Mid-Level Facilities which expires in 2041. It is common knowledge that the life of the TMT Observatory is more than 50 years and would extend over 40 years beyond 2033. Based upon TMT’s construction timeline, if built, the TMT observatory would not be operational until 2024 or later leaving only about nine years or less of use for a $1.4 billion project that would have to be decommissioned before the expiration of the general lease. It is for this very reason UH, the Lessee/Sublessor of the subject property, submitted a request at the BLNR Nov. 8, 2013 meeting (Agenda Item D-5) for an issuance of new direct 65-year general leases. However, this action was deferred at the request of UH in order to prepare and complete an Environmental Impact Statement (“EIS”) for the proposed new long-term general leases for the Mauna Kea Science Reserve and related facilities and easements to replace its existing leases and, in turn, enter into new subleases for the extended term.

Based upon the Environmental Impact Statement Preparation Notice (“EISPN”) submitted (Dec. 23, 2014) to the State Office of Environmental Quality Control regarding issuance of new general leases, the enclosed document discusses three alternatives. These three alternatives and potentially additional alternatives advanced by stakeholders during the EISPN review period are still yet to be fully evaluated in this environmental assessment process. Alternative 1 is a “No Action Alternative”, under which the existing MKSR general lease, S- 4191, would run its course and UH and its sublessees would terminate their uses no later than the end of 2033.5 Should the “No Action Alternative” be selected, no new telescopes (including the TMT) would be built and all of the existing facilities would eventually be decommissioned and the land would be returned to DLNR. UH has conceded that the TMT project will no longer be viable if it has to be decommissioned by 2033, only nine years or less after it is proposed to become operational. Therefore, it would be in the best interests of all, including the State and TIO, to determine the outcomes of the proposed new general leases and the HRS Chapter 343 assessment process before proceeding further with any construction of the TMT.

Based upon the Hawai‘i State and U.S. constitutional and statutory provisions, the State along with its agencies and agents are compelled to protect the interests of the public land trust, its beneficiaries, and the traditional and customary rights of Native Hawaiians. It is also very apparent that TIO, a Delaware company based in California, is not a beneficiary of the public land trust and is not affiliated with Native Hawaiians. As such, any business interests of the TIO do not outweigh the inherent interests and rights of the requestor -- beneficiaries of the public land trust and Native Hawaiians. Mauna a Wäkea is still sacred.

These matters were previously brought to the attention of former Chair/Director William Aila, Jr., other Board members, and DLNR staff through both written and oral testimony. However, my public testimony and comments were systematically ignored. Consequently, the only recourse was to file an appeal pro se. Should you in your leadership capacity for this State not be able to adequately address these matters brought to your attention, then we shall seek some form of Federal intervention and/or investigation. Should you be willing to meet or require further information regarding this request, please feel free to contact me.

Thereby, this stay would preserve the status quo and prevent the public land trust, environment, significant natural and cultural resources on Mauna Kea, and Native Hawaiian traditional and customary rights from further harm by the TMT project until these matters are adequately addressed.

For the foregoing reasons, we respectfully request that an immediate cease and desist order and a stay on construction be granted that prohibits TIO from proceeding with construction of the TMT until the matters brought forth are resolved.

I ka piko o ke aloha,

E. Kalani Flores

cc: (SENT VIA EMAIL &/OR CERTIFIED U.S. MAIL) Department of the Attorney General, State of Hawai‘i
U.S. Attorney’s Office, U.S. Department of Justice
U.S. Department of Interior, Office of Native Hawaiian Relations BOT & CEO, Office of Hawaiian Affairs

1 These appeals are from the June 27, 2014 and July 25, 2014 decisions of the BLNR, Consent to Sublease under General Lease No. S-4191 to the University of Hawaiʻi, Lessee, to TMT International
Observatory LLC, Sublessee, Kaʻohe, Hamakua, Island of Hawaiʻi, Tax Map Key: (3) 4-4-015: 009 por., (hereinafter the “TMT Sublease”), and the denial of a contested case hearing, that are pending a hearing in the Third Circuit Court. Also pending before the Hawai‘i Intermediate Court of Appeals is a separate appeal CIVIL NO. 13-1-0349, challenging the BLNR’s granting of the Conservation District Use Permit (“CDUP”) HA-3568 for the TMT project.

2 D-15 Resubmittal: Mutual Cancellation of General Lease No. S-4191 to the University of Hawaii (UH) for the Mauna Kea Science Reserve and Issuance of New Direct Lease to UH for Mauna Kea Science Reserve Purposes; Mutual Cancellation of General Lease No. S-5529 to UH for the Hale Pohaku Mid-Level Facilities and Issuance of New Direct Lease to UH for Hale Pohaku Mid-Level Facilities Purposes; Extension, Amendment and Restatement of Grant of Term Easement S-4697 to UH to Extend the Easement Term by Approximately 45 Years and Update the Easement Instrument with Current Provisions Approved by the Department of the Attorney General, Kaohe, Hamakua, Island of Hawaii, Tax Map Keys: 3rd/ 4-4-15:01 por., 09 & 12.

3 D-5: Denial of Requests for Contested Case by (1) Kalani Flores, (2) Paul Neves, and (3) Hanalei Fergerstrom re: (a) Board Action of November 8, 2013, Item D-5, No Action on Mutual Cancellation of General Lease No. S-4191 to the University of Hawaii (UH) for the Mauna Kea Science Reserve and Issuance of New Direct Lease to UH for Mauna Kea Science Reserve Purposes; Mutual Cancellation of General Lease No. S-5529 to UH for the Hale Pohaku Mid- Level Facilities and Issuance of New Direct Lease to UH for Hale Pohaku Mid-Level Facilities Purposes; Extension, Amendment and Restatement of Grant of Term Easement S-4697 to UH to Extend the Easement Term by Approximately 45 Years and Update the Easement Instrument with Current Provisions Approved by the Department of the Attorney General; and (b) Board Action of December 13, 2013, Item D-15, Deferring Action on Resubmittal: Mutual Cancellation of General Lease No. S-4191 to the University of Hawaii (UH) for the Mauna Kea Science Reserve and Issuance of New Direct Lease to UH for Mauna Kea Science Reserve Purposes; Mutual Cancellation of General Lease No. S-5529 to UH for the Hale Pohaku Mid-Level Facilities and Issuance of New Direct Lease to UH for Hale Pohaku Mid-Level Facilities Purposes; Extension, Amendment and Restatement of Grant of Term Easement S-4697 to UH to Extend the Easement Term by Approximately 45 Years and Update the Easement Instrument with Current Provisions Approved by the Department of the Attorney General, Kaohe, Hamakua, Island of Hawaii, Tax Map Keys: 3rd/ 4-4-15:01 por., 09 & 12.

4 D-19 Resubmittal: Consent to Sublease under General Lease No. S-4191 to the University of Hawaiʻi, Lessee, to TMT International Observatory LLC, Sublessee (approved as amended), Kaʻohe, Hāmākua, Island of Hawaiʻi, Tax Map Keys: 3rd/ 4-4-15:01 por., 09 & 12.