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OHA sues UH over Mauna Kea; Attorney says agency willing to work with DLNR on new management structure

In a lawsuit filed Tuesday in Honolulu Circuit Court, the Office of Hawaiian Affairs is alleging the University of Hawaii is in violation of its general lease for the Mauna Kea Science Reserve and asks for the agreement to be cancelled.

OHA says UH and the state Department of Land and Natural Resources are failing to meet their obligations to properly manage the 11,288-acre reserve, part of the state’s inventory of ceded lands.

OHA trustee Dan Ahuna said during a press conference Wednesday in Honolulu that the lawsuit is about how to properly malama Mauna Kea, and not about any telescope project.

“This is not about a single telescope,” he said. “This is not about Hawaiian culture versus science. This is 100 percent about the state and UH … It’s time to abandon any hope UH is capable or willing to be proper stewards.”

After the press conference, attorney Robert Klein, who is representing OHA, said in an email that the agency is willing to work with DLNR on a new management structure that “includes Native Hawaiian interests in the decision-making process.”

An OHA spokesman didn’t immediately respond to a follow-up question regarding whether the agency wants to assume management responsibilities. Trustee Robert Lindsey, who represents Hawaii Island, didn’t respond to a phone call requesting comment by deadline.

The litigation highlights a critical 1998 audit of UH’s use of the mountain and limited efforts to create management plans prior to the formation of UH-Hilo’s Office of Maunakea Management in 2000. A comprehensive management plan was approved in 2009, but OHA calls it deficient and alleges the state and UH are not properly overseeing management actions.

Other issues cited in the lawsuit include protection of Native Hawaiian practices, the lack of administrative rules for the mountain regarding access and the practice of charging observatories $1 or less for rent in exchange for viewing time, which OHA says fails to consider the costs of management responsibilities.

Observatories pay for road maintenance and other infrastructure costs. The Thirty Meter Telescope would be the first to pay more than a nominal fee for its sublease.

Its vacated sublease set rent at $300,000 in the first three years with that increasing incrementally to about $1 million after a decade. OHA, which would receive 20 percent of lease revenue, has taken a neutral position of the $1.4 billion project after previously being in support.

Klein said during the press conference broadcast on Facebook that UH, granted the 65-year lease in 1968, has had enough time to get it right.

“Their position has always been give us more time and we’ll do better,” Klein said. “We’ve heard that since forever. We’re talking about four scathing audits. … We’re talking nine years and there are still no (administrative) rules.”

Through OMKM and other offices, the university operates a ranger program; maintains the access road, a visitor information station and weather center; and is responsible for implementing management plans. If the lease is cancelled, those efforts would presumably revert to DLNR, unless a new entity is established.

UH spokesman Dan Meisenzahl blasted OHA’s characterization of management efforts during the past 17 years.

“The way that the university is being portrayed is inaccurate and, quite frankly, it’s unfair,” he said. “And not just about the university. The work that’s happened on the mountain has been the work of volunteers, community members and other people who are part of the process.”

Meisenzahl called OMKM, which includes a board of Hawaii Island residents and a Native Hawaiian advisory council, a model of “community-based management.”

He said administrative rules regarding regulation of access were delayed because of litigation around TMT. They were later drafted but finalizing them has been put on hold at the request of Gov. David Ige, according to a July audit of UH’s management efforts.

Meisenzahl disagreed with Klein that the most recent audit was scathing in its findings.

That follow-up audit found four remaining recommendations partially implemented by UH and four not implemented.

The partially implemented items included adoption of administrative rules regarding public and commercial activities, completion of the remaining five management actions in the Comprehensive Management Plan, renewal of its general lease and to proceed with an environmental impact statement for a new lease.

Incomplete items were determining whether unauthorized fees collected since 2007 for commercial tour operators should be returned (UH disagreed with this), receive approval from UH’s Board of Regents for a commercial tour fee schedule, renegotiate existing subleases (UH said a new general lease needs to be established first) and use of “stewardship-related conditions” in the TMT permit as a template for new telescope permits.

Thirteen telescopes exist on the mountain, with one, the Caltech Submillimeter Observatory, closed in 2015.

Meisenzahl said CSO’s decommissioning doesn’t have a start date set.

“Decommissioning is not simple,” he said. “It’s the first through the process.”

Meisenzahl said UH still plans to seek a new master lease for at least part of the science reserve beyond 2033.

In response to the lawsuit, DLNR said in a statement that it’s reviewing the complaint.

“DLNR remains committed to its stated mission of enhancing, protecting, conserving and managing Hawaii’s unique and limited natural, cultural and historic resources held in public trust in partnership with others from the public and private sectors. We will comment further at an appropriate time.”

In addition to rescission of the general lease, the lawsuit seeks an injunction requiring defendants to meet their trust duties, an accounting of ceded lands on the mountain and costs of managing them, restitution to make the trust whole and damages. OHA says it filed the lawsuit after efforts at mediation with the state were unsuccessful.

Email Tom Callis at tcallis@hawaiitribune-herald.com.

 

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