A meeting of the state Land Use Commission will continue through today as petitioners argue to reclassify land at the summit of Maunakea.
Dozens of testifiers spoke at a Thursday meeting of the Commission regarding a petition filed in September by Hilo residents Ku‘ulei and Ahiena Kanahele. The petition requests that the Land Use Commission determine that the use of land at Maunakea summit — currently within the conservation district — is more consistent with land use within the urban district.
Land at Maunakea summit is owned by the state, managed by the Department of Land and Natural Resources, and leased by the University of Hawaii. Currently, 12 observatories — along with the yet-to-be-built Thirty Meter Telescope — have been constructed at the summit thanks to various conservation district use permits authorized since 1968.
The density of astronomical facilities at the summit, the petition argues, is not consistent with conservation district land. Because of this, it argues, the Commission should issue declaratory orders stating the current use of the summit land is appropriate for the urban district, that further construction on the summit land must comply with urban district requirements, and that the cumulative development within the conservation district is inconsistent with the concept of conservation land.
However, the petitioners themselves were unable to testify, as most of Thursday’s meeting was spent on testimony from representatives of UH, TMT and the Hawaii County Planning Department. Although all testifiers were granted three minutes to respond, the commissioners were allowed to question the testifiers as they saw fit, with some lines of questioning lasting for over an hour.
The most extensive and aggressive questioning was reserved for UH Associate General Counsel Jesse Souki. Souki stated that the legal argument against the petition is simple: although the Commission has the authority to reclassify land, the DLNR has sole jurisdiction over land in the conservation district, rendering the Commission powerless to grant the petition.
Commission Chair Jonathan Scheuer pushed against Souki’s argument, asking if the University could dodge any accountability in the management of the land.
“I’m asking if UH could fail to follow any of the conditions of the [conservation district use permit] and still keep that permit?” Scheuer said.
Souki only replied with an enigmatic “Anything’s possible.”
Scheuer also criticized a statement made by UH-Hilo Chancellor Bonnie Irwin, who had previously said that UH currently has no intention to seek a boundary classification amendment for the summit land, regardless of the outcome of the petition. This, Scheuer said, seemed to contradict the University’s stated intention to engage in conversation with members of the community to better manage Maunakea lands.
“It’s not a conversation if you order us to do it,” Souki said.
Greg Chun, UH-Hilo’s executive director of Maunakea stewardship, said the petition runs counter to the University’s goal of responsible stewardship, as granting the petition would lead to the summit being classified as “urban.” Furthermore, Chun said, the regulatory processes of the Commission are necessarily adversarial, reducing any issue to a binary “yes” or “no” answer, and are not suited to handle broader policy changes.
TMT attorney Ross Shinyama spoke briefly, arguing that the petition runs afoul of res judicata, a legal concept meaning that, once a matter has been decided by a court, it cannot be raised again by the same parties. Ku‘ulei Kanahele testified as a witness during the 2017 contested case hearing, which Shinyama said definitively resolved the matter of TMT’s conservation district use permit.
The last major testifier on Friday was Deputy Attorney General Bryan Yee, speaking on behalf of the state Office of Planning. Among Yee’s lengthy testimony, he stated that it is inaccurate to look at land boundary classifications as prescriptive determinants of what can be built.
“Some urban use is permitted in non-urban districts,” Yee said. “The [district boundary amendment] just determines the standards of building on that land.”
Because of this, Yee argued, you could theoretically build a high-rise on conservation district land by using a conservation district use permit, although he added that that would be a terrible idea.
Other testifiers were not questioned as extensively, but were nearly universally in support of the petition. Some referred to the continual development atop Maunakea as “urban sprawl,” others used the word “genocide” to describe the state’s continual disregard for cultural practitioners who consider the land sacred.
Mostly, however, testifiers were critical of how the DLNR and UH have managed Maunakea lands for the last 50 years.
“I think a state agency has bypassed your Commission, proceeded to full industrialization, and left you to clean up the mess,” testifier Lanny Sinkin told the commissioners.
The meeting will continue today with the testimony of the petitioners at the Crown Room of the Grand Naniloa Resort. However, public testimony closed at the end of session Thursday, and no further testimony from the public will be possible.
Email Michael Brestovansky at mbrestovansky@hawaiitribune-herald.com.
