BY PETER SUR | STEPHENS MEDIA
HILO — The state appeals court has upheld the approval of a University of Hawaii-developed management plan for Mauna Kea.
The Mauna Kea Comprehensive Management Plan is a document that was approved in 2009 to help UH manage the conservation lands on Mauna Kea that it leases from the state.
The CMP was opposed by a coalition of Hawaiian and environmental rights activists who charge that among other things UH, as a leaseholder, is the wrong entity to write the management plans for Mauna Kea’s summit region.
The opponents, who fought the CMP as part of a larger strategy to oppose the construction of new telescopes on Mauna Kea, appealed their denial of a contested case hearing by the Board of Land and Natural Resources, but they never got to make that argument in court. Circuit Court Judge Glenn Hara dismissed the appeal in early 2010, citing a lack of jurisdiction, and the opponents appealed.
Wednesday, the Intermediate Court of Appeals upheld Hara’s ruling, clearing the university to continue its implementation of the plan.
In its opinion, the appeals court dismissed the points raised by opponents Mauna Kea Anaina Hou, the Royal Order of Kamehameha I, the Sierra Club, Hawaii Chapter, KAHEA and Clarence Ching.
“If a contested case hearing was not required by law, the circuit court does not have jurisdiction,” the three-judge court said. In concluding the 22-page opinion, the appeals court said that “because a contested case hearing was not required, the circuit court did not err in dismissing petitioners’ appeal.”
The ruling is good news for the Thirty Meter Telescope, which cannot go forward without an approved management plan. It’s also good news for the UH-Hilo Office of Mauna Kea Management, which is the agency tasked with implementing the plan.
“Now we know we can move ahead,” said OMKM Interim Director Stephanie Nagata. She said that process has already been ongoing.
“We just hired a new natural resources manager” to work on the Natural Resources Management Plan, Nagata said.
In denying the appeal, the circuit court cited a 1994 case in which it was determined hearings are mandated whenever a party seeks to protect a property interest for which it has “more than an abstract need or desire” and “more than a unilateral expectation.”
On those grounds, the court ruled in favor of the university “because no property rights are being granted or denied. … Furthermore, the CMP does not affect the constitutionally protected rights” of the telescope opponents.
The court said that without administrative rules in place, “these ‘management actions’ are nothing more than considerations for the future.”
Deborah Ward of the Sierra Club said that meant the court affirmed what she and her allies have argued all along: “The plan doesn’t do anything.”
That means no protection for the ongoing degradation of the mountaintop, she said. Ward did not expect an appeal of the circuit court ruling.
“Obviously the university has plans for the future,” Ward said, and promised continued vigilance.
psur@hawaiitribune-herald.com
BY PETER SUR | STEPHENS MEDIA
HILO — The state appeals court has upheld the approval of a University of Hawaii-developed management plan for Mauna Kea.
The Mauna Kea Comprehensive Management Plan is a document that was approved in 2009 to help UH manage the conservation lands on Mauna Kea that it leases from the state.
The CMP was opposed by a coalition of Hawaiian and environmental rights activists who charge that among other things UH, as a leaseholder, is the wrong entity to write the management plans for Mauna Kea’s summit region.
The opponents, who fought the CMP as part of a larger strategy to oppose the construction of new telescopes on Mauna Kea, appealed their denial of a contested case hearing by the Board of Land and Natural Resources, but they never got to make that argument in court. Circuit Court Judge Glenn Hara dismissed the appeal in early 2010, citing a lack of jurisdiction, and the opponents appealed.
Wednesday, the Intermediate Court of Appeals upheld Hara’s ruling, clearing the university to continue its implementation of the plan.
In its opinion, the appeals court dismissed the points raised by opponents Mauna Kea Anaina Hou, the Royal Order of Kamehameha I, the Sierra Club, Hawaii Chapter, KAHEA and Clarence Ching.
“If a contested case hearing was not required by law, the circuit court does not have jurisdiction,” the three-judge court said. In concluding the 22-page opinion, the appeals court said that “because a contested case hearing was not required, the circuit court did not err in dismissing petitioners’ appeal.”
The ruling is good news for the Thirty Meter Telescope, which cannot go forward without an approved management plan. It’s also good news for the UH-Hilo Office of Mauna Kea Management, which is the agency tasked with implementing the plan.
“Now we know we can move ahead,” said OMKM Interim Director Stephanie Nagata. She said that process has already been ongoing.
“We just hired a new natural resources manager” to work on the Natural Resources Management Plan, Nagata said.
In denying the appeal, the circuit court cited a 1994 case in which it was determined hearings are mandated whenever a party seeks to protect a property interest for which it has “more than an abstract need or desire” and “more than a unilateral expectation.”
On those grounds, the court ruled in favor of the university “because no property rights are being granted or denied. … Furthermore, the CMP does not affect the constitutionally protected rights” of the telescope opponents.
The court said that without administrative rules in place, “these ‘management actions’ are nothing more than considerations for the future.”
Deborah Ward of the Sierra Club said that meant the court affirmed what she and her allies have argued all along: “The plan doesn’t do anything.”
That means no protection for the ongoing degradation of the mountaintop, she said. Ward did not expect an appeal of the circuit court ruling.
“Obviously the university has plans for the future,” Ward said, and promised continued vigilance.
psur@hawaiitribune-herald.com