On September 29, 2017, the Board of Land and Natural Resources (BLNR) approved, for the second time, a permit to construct the Thirty Meter Telescope (TMT) atop Mauna Kea. While that decision is being appealed directly to the Hawai‘i Supreme Court, another appeal that could impact the TMT’s ability to construct its telescope is also underway and awaiting a Supreme Court ruling.

Currently before the Supreme Court is the case Flores v. BLNR. In that case, Kalani Flores, a Native Hawaiian cultural practitioner and educator, successfully challenged before a state circuit court the University of Hawai‘i’s sublease with TMT International Observatory for the land needed for the TMT project.

The University of Hawai‘i currently holds a 65-year lease for 13,000 acres of “ceded” lands on Mauna Kea from the State. That lease is set to expire in 2033. That 65-year lease, as well as state law, requires the University to first get the BLNR’s approval before it can sublease the Mauna Kea lands to other entities. Though the lease was originally for “an observatory,” Mauna Kea now houses a series of no less than 13 observatories.

In 2014, the University of Hawai‘i applied to the BLNR for approval of a sublease between the University and the TMT International Observatory, LLC, for the land where the Thirty Meter Telescope is intended to be built. The sublease deeply concerned Flores, who believes that “the existing astronomy development and mismanagement on Mauna a Wakea has resulted in substantial, significant, and adverse impacts upon its natural and cultural resources. The sublease for the proposed TMT project would contribute further to these unwelcomed impacts upon our sacred mountain, cultural sites and traditions.”

When the BLNR considered the sublease for approval, Flores, who at that time did not have an attorney, wanted to inform the BLNR as to why it should not approve the sublease. Flores requested a contested case hearing to do so, but the BLNR denied Flores’ request and instead approved the sublease. Flores then appealed the State’s decision to the Circuit Court of the Third Circuit. The Native Hawaiian Legal Corporation took on the appeal.

This year, the Third Circuit Court ruled in Flores’ and Native Hawaiian Legal Corporation’s favor and invalidated the BLNR’s approval of the sublease. The Court determined that Flores’ rights and practices as a Native Hawaiian were entitled to constitutional protection, and that those rights were violated because the State made a decision affecting Native Hawaiian traditional and customary practices without first holding a contested case hearing to address it.

According to Flores, “it is unfortunate that as a member of the public, I was forced to go to court because the BLNR would not hold a hearing before it made a decision affecting the public land trust and the interests, resources, and rights of the public and Native Hawaiians.” The State and the University appealed the Third Circuit Court’s decision to the Hawai‘i Supreme Court, where the case is currently awaiting a decision.

Contested case hearings, like the one Flores asked for in his case, are non-court administrative hearings that must be held by a state agency before that agency makes certain decisions affecting the rights of the public. These hearings are important for two reasons: first, they allow members of the public to educate the State on why certain decisions and resulting state action should or should not be made and taken. Second, the hearing gives the public a way to challenge development and other State-approved projects without having to go to Court.

By approving the sublease between TMT International Observatory and the University without first holding a contested case hearing to consider how the sublease would affect Native Hawaiians who consider Mauna Kea sacred, the State ignored its constitutional obligations to protect the interests of Native Hawaiians and the places and practices they hold sacrosanct.

The BLNR’s decision to approve the sublease placed an unneeded burden on Flores. “Initially, I had to personally assume the financial and time commitments to file the legal briefs and appear in circuit court in the capacity as pro se, without an attorney, regarding this matter. I’m truly grateful for the attorneys and staff of Native Hawaiian Legal Corporation for continuing with this case to defend our rights as Kānaka Maoli and to protect our customary practices and the public land trust.”

Flores’ legal challenge is not over, but his case and cases like it, are an important step in the fight for the recognition that Native Hawaiian rights are no less important than the commercial interests the State so often supports.