Hawaiian rights scrutinized, not considered, during TMT contested case

A response to Ian Lind's Civil Beat column, "Dangerous Intersection of Social Policy and the ‘Sacred."

The Hawaii Independent

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Ian Lind’s April 29 Civil Beat column “Dangerous Intersection of Social Policy and the ‘Sacred’” offered that understanding and appreciating the state’s discussion of Hawaiian petitioners’ rights would “open up” ways “to resolve the current impasse.” I take up the discussion with Lind on this point (and not his disingenuous comparison between historically dispossessed kānaka maoli Mauna Kea protectors and the well-funded, orthodox religious right) to clarify exactly where the state has stood in its address to Hawaiian rights on Mauna Kea.

Lind reviewed Board of Land and Natural Resources’ (BLNR) Hearing Officer Paul Aoki’s findings, which were issued at the conclusion of the 2011 contested case regarding the University of Hawai’i (UH)‘s application for a conservation district use permit (CDUP) to construct the Thirty-Meter Telescope (TMT) on the northern slope of Mauna Kea’s summit. Aoki’s findings adopted UH’s proposed findings essentially verbatim, and BLNR, in turn, adopted Aoki’s findings. Lind only read the history of the winners.

The contested case petitioners (Kealoha Pisciotta of Mauna Kea Anaina Hou, KAHEA, Clarence Kū Ching, Paul Neves, Deborah Ward and the Flores-Case ʻOhana: Kalani Flores and Pualani Case) filed a 200+ page document of exceptions to Aoki’s findings, along with many other briefs, exhibits and testimonies. Petitioners Pisciotta, Ching, Neves and the Flores-Case ʻOhana are Hawaiian cultural practitioners.

In 2011, BLNR admitted the six petitioners into the contested case proceeding regarding UH’s CDUP application. UH was required to show it met eight criteria to merit a CDUP in compliance with laws, including constitutional protections for Native Hawaiian traditional and customary practices. And, under the Hawai’i Supreme court decision, Ka Paʻakai o ka ʻĀina (2000), BLNR, not UH, was required to identify these practices, assess impacts on them, and identify feasible protections for them.

Lind notes that, “the record doesn’t reflect an absence of attention” (emphasis added) to Native Hawaiian rights by UH, BLNR, or Aoki, meaning that the record appears to show that a great deal of attention was paid to these rights. This may technically be true, but the attention given to Hawaiian rights consisted of a carping scrutiny that subjected Hawaiian cultural practices to a labyrinthine inquiry. The purpose of this “attention” was solely to craft an elusive standard under which Hawaiian cultural practices could be corralled towards the tightest of times and smallest of spaces.

At the outset, UH/BLNR said Petitioners’ cultural “practices” were not protected under CDUP criterion #4 (prohibiting substantial adverse impacts to “natural resources,” defined to include cultural resources) because they were “practices” and not “resources”. This illogic would abstract cultural resources from the very culture that makes them into resources in the first place!

UH/BLNR also said that, even if practices were relevant to criterion 4, the Petitioners’ cultural practices were “contemporary” and not “traditional and customary.”

First, Lind’s conclusion that, “the TMT opponents did not document that their practices had been established use prior to the Nov. 25, 1892, trigger date” is limited by the restricted scope of his own archive. Petitioners’ filings contain volumes of evidence of traditional and customary practices. Second, and perhaps more importantly, the distinction between “contemporary” from “traditional” practices presumes a stagnant, colonial version of Hawaiian culture. Third, UH’s own Cultural Impact Assessment (CIA) states that, “no purpose would be served by distinguishing [contemporary cultural practices] as something different,” and cultural practices currently associated with Mauna Kea summits “would seem to qualify as traditional and customary cultural practices within the meaning of the Hawaiʻi State Constitution[.]” (UH Exhibit A-21, Master Plan for the Mauna Kea Science Reserve, Appx. N at 45.)

UH could not deny that the Petitioners were similar or the same as those identified as constitutionally-protected in its own CIA because Pisciotta herself, and Pualani Case’s uncle, Lloyd Case, were UH’s own informants on the matter.

UH/BLNR said that even if the TMT were to impact Hawaiian cultural practices, these impacts would not be substantial and adverse under criterion #4 because the TMT’s impact is “incremental” and not “substantial.” According to UH/BLNR’s illogic, because Mauna Kea is already messed up by the other 13 telescopes, messing it up more matters less. That is to say, the more UH messes up these summits, the lower the bar should be for new construction.

UH/BLNR continued to to say that the TMT’s impacts would be permissible because of “mitigation measures”—community benefits funding, cultural awareness training, painting the observatory a less-shiny color, encouraging ridesharing—all of which, the Petitioners pointed out, failed to address the actual impacts of constructing on the mauna. Troublingly, UH’s primary mitigation was siting the TMT off of the main summit and on the norther plateau.

First, UH deemed it not-feasible for the TMT to be sited on a redeveloped telescope site on the main summit. So why did BLNR give UH mitigation points for not doing something that they could not have done anyway?

Furthermore, siting the TMT on the northern plateau would obstruct the last open viewplane between Mauna Kea’s summit and Haleakalā, which is an important alignment for practitioners, including Kumu Hula-Petitioner Paul Neves. Petitioner Neves explained the cultural significance of this alignment and further stated: “these are alignments not of the eye but of the heart,” and “‘ike is to know and see the event . . . so the view plane begins in the naʻau and not just in the maka (eyes).”

In response to the Petitioners’ view plane alignment concerns, UH/BLNR pointed to Neves’ testimony as evidence that viewplane alignments were not physical and visual, but merely “heartfelt” concern, and therefore were “emotional” impacts and not “natural resource” impacts to be assessed under criterion 4. UH further argued Petitioner Pua Case could just “hold up her hand” to block out the TMT’s visual impacts while praying at the summit.

Petitioners have pointed to evidence of shrines resembling historic properties at the specific TMT project site. UH then argued that those are “find spots,” and are of recent origin, therefore not “historic properties,” and that impacts on them are also not considered under criterion 4.

The shell game played during the contested case elaborated a complicated set of rules that are aimed at narrowing Hawaiian cultural practitioner rights in general, and at arguing into inexistence the rights of these Petitioners in particular. The law protects ultural “resources,” not cultural practices; traditional and customary practices, not “contemporary” cultural practices; cultural resource impacts, not “emotional” impacts; TMT-sited impacts, not Mauna Kea impacts; historic properties, not shrines “of more recent vintage.”

UH Professor of Hawaiian studies Jonathan Osorio offered a cogent comment on where UH/BLNR’s acrobatic arguments and the public process has left us: “Powerful institutions [such as] OHA and DLNR, and not only the courts (the Third Circuit affirmed BLNR’s decision), by disregarding reasonable objections to the TMT from the very beginning, have brought us to this point where all we have left are our voices.” How could anyone in good conscience ask the Kū Kiaʻi Mauna movement to be silent after decades of “this is the last telescope” promises? How could anyone ask them to be silent after patient participation in a process that proliferated such sophistries described here, all to justify what looks very much like a preordained result? As in its decision to permit solar telescope construction on Haleakalā, BLNR voted to approve the TMT permit before any contested case was held.

The extensive record of efforts to protect Mauna Kea, by both kānaka and non-Hawaiians, through public hearings, commenting, education, advocacy and litigation, should not be read as evidence of the goodwill of the state and the TMT, or of their patience in sitting through seven years of a permitting process. This is also a record of how decision makers and their development partners have evaded the questions Mauna Kea protectors are raising about whose futures, knowledges and histories are to thrive in Hawai’i.

So, in response to Lind: Only by making the TMT project truly answerable to these questions, and not by creating another venue for legal rhetorics, will we discover how to get past the impasse.

Bianca Isaki is not kānaka maoli, serves on the board for KAHEA: The Hawaiian Environmental Alliance, and was KAHEA’s legal intern in 2011 during the contested case phase of the UH/TMT CDUP challenge.