Plans to build a Thirty Meter Telescope (TMT) on Mauna Kea cleared another hurdle when the Hawaii State Supreme Court upheld a permit necessary for construction of the $1.4 billion observatory, but petitioners in the case are not giving up the fight.

The conservation district use permit had been invalidated in 2015 due to lawsuits, but the courts 4-1 decision on Oct. 30 affirmed the permit issued by the Board of Land and Natural Resources (BLNR). The ruling disappointed Native Hawaiian groups and environmentalists opposed to further development on Mauna Kea. Pua Case, a plaintiff in the case, took to Facebook after the decision to post, Mauna Kea is still sacred! The TMT will not be built on our sacred mauna.

On Nov. 19, Case and the other Mauna Kea petitioners filed a motion for reconsideration with the Supreme Court, urging it to adopt the findings of dissenting Justice Michael Wilson, whose opinion was filed 10 days after the conferring decision. Wilsons opinion noted BLNR had concluded that addition of the TMT would have no significant impact because the cumulative effects from prior astronomical development have been so substantially adverse. This does not mean that astronomy facility development is allowed to cause substantial, significant and adverse impacts to the conservation district area and that development is allowed to continue even after reaching such a level, the appellants wrote in their motion.

Richard Ha, a member of a Native Hawaiian group that testified in support of the telescope – PUEO – is satisfied with the Courts ruling and believes that part of the fight is over. While the Hawaii Island businessman has been in favor of the TMT and the jobs it will bring to his island, he also believes that better management of Mauna Kea is required – including a plan that places Hawaiian culture over astronomy.

“There’s nothing up there that shows any respect for the culture. The telescopes are like little temples, but Hawaiian temples? No more,” he said. “Frankly its upsetting to me. I dont think theres respect there. I like pound the table.”

Ha sees room for Hawaiian culture and astronomy to co-exist on Mauna Kea – “Why cant we have both?” he asks – and proposes a cultural center above the clouds, and charging for access to limit traffic up the mountain.

While some, like Ha, see potential for compromise, that wont satisfy many Hawaiian groups and environmentalists who oppose construction on Mauna Keas sacred summit. High profile demonstrations disrupted the TMT groundbreaking in 2014, and led to 31 arrests in 2015 when protestors blocked construction vehicles from traveling up the mountain. Those pursuing legal channels point to the toll existing telescopes have already taken on the aina, and warn new construction will further impinge on Native Hawaiian rights to traditional and customary practices on the sacred mountain.

Controversy and delays in construction led TMT officials to identify the Canary Islands as an alternative site for the telescope. In a statement expressing their disappointment in the Supreme Courts decision, KAHEA, a Hawaiian-environmental alliance and a plaintiff in the case, urged the University of Hawaii, the state and TMT to choose the Canary Islands, already home to the worlds largest telescope:

“The opinion wrongly relies on representations that there is no evidence of Hawaiian cultural practices on the specific acreage proposed for the TMT. Thousands of Hawaiian cultural practitioners have affirmed the sacredness of the entirety of Mauna Kea. Thousands more have supported the protection of Mauna Kea from the TMT project. The Courts opinion has done nothing to change this”, read the Oct. 30 statement.

Kuaaina Ulu Auamo, Colette Machado and Dan Ahuna – collectively the Native Hawaiian Amici – filed a memorandum in support of the Nov. 19 motion to reconsider the Supreme Courts decision. Machado and Ahuna both stepped forward in their personal capacities, not as OHA trustees, because the timetable didnt give OHAs board time to take official action at a formal meeting. Their memorandum states: “…The Courts majority opinion erodes Chief Justice William S. Richardsons legacy with respect to Native Hawaiian traditional and customary rights and public trust doctrine. The opinion diminishes basic principles and settled precedent under these constitutional mandates and threatens to curtail the legal exercise of Hawaiis native culture and practices.”

The amicus does not ask the court to reconsider its decision to affirm the BLNRs authorization. Rather it advocates for the court amend its analysis, which may undermine or minimally confuse critical legal protections of Native Hawaiian rights the court has previously established, and invite agencies to diminish their constitutional affirmative obligations to protect Native Hawaiian traditional and customary rights.

After the Supreme Court decision, the Office of Hawaiian Affairs announced it is moving forward with a lawsuit filed last year against UH and the state over mismanagement of Mauna Kea, where 13 observatories have already been built on the summit:

“Despite four state audits and generations of Native Hawaiians expressing concern about the threats to Mauna Kea, the state and the University of Hawaii have continuously neglected their legal duties to adequately manage the mountain. Instead, they have consistently prioritized astronomical development at the expense of properly caring for Mauna Keas natural and cultural resources.

“The Supreme Courts ruling demonstrates an urgent need for the state to create mechanisms to ensure that constitutionally protected traditional and customary practices and cultural resources are not sacrificed or abridged.

“In November 2017, OHA sued to hold the state and UH accountable for its longstanding and well-documented mismanagement of Mauna Kea. For years, OHA held good faith discussions with the state to stop the states failed stewardship. We started discussions with all of the state parties and the University of Hawaii in 2015, well before we filed the lawsuit, and have since then attempted to resolve the management issues in the best interests of our beneficiaries and the state in general. Neither mediation, negotiation, nor discussions have proven fruitful.

“After 50 years of empty promises to the mauna and our community, the state needs to be held accountable. Mauna Kea deserves better.”

The Office of Hawaiian Affairs will provide updates on the lawsuit and related Mauna Kea issues at www.oha.org/maunakea.