Hawaii Judge Reverses Permit for More Mauna Kea Telescopes

HILO, Hawaii, August 7, 2006 (ENS) - A Hawaii state court has reversed a conservation district use permit granted by a state agency that would have allowed the construction of up to six more telescopes on the summit of Mauna Kea, the tallest mountain in the Pacific. The ruling puts a roadblock in the path of NASA's $50 million outrigger telescope project planned for the W.M. Keck observatory.

In a decision issued August 3, Judge Glenn Hara reversed the permit granted to the University of Hawaii Institute of Astronomy by the state Board of Land and Natural Resources (BLNR) to build the telescopes.

Judge Hara decided that administrative rules governing astronomy facilities require a "comprehensive management plan" for the Mauna Kea summit, which is a conservation district.

The Mauna Kea summit is a conservation district because it is a fragile and unique alpine ecosystem that serves as a major source of water for the entire island of Hawaii. Development in conservation districts is permitted only if it can be done in a way that does not degrade the public resource.

There already are 13 telescopes and support facilities at the Mauna Kea summit.

An array of four to six small telescopes, called outriggers, are planned to surround the existing twin Keck telescopes, the world's largest optical and infrared telescopes. The Outrigger Telescopes Project is a key element in NASA's Origins program, which seeks answers to two basic questions - "Where do we come from?" and "Are we alone?"

Key to answering these questions is finding out how galaxies, stars and planets form, and whether other planets have the conditions necessary to support life.

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Artist's concept of four small outrigger telescopes around the two larger Keck telescopes. (Photo courtesy NASA)
The University of Hawaii holds the lease for the Mauna Kea Science Reserve, and as leaseholder applied on behalf of W.M. Keck Observatory for a conservation district use permit for the Outrigger Project, which the BLNR granted in 2003.

Two Hawaiian organizations, a Native Hawaiian individual, and the Sierra Club appealed the BLNR permit in November 2004 after contested case hearings that lasted through 2003-2004. During the hearings on appeal, Native Hawaiian lineal and cultural descendants, religious practitioners, and cultural experts testified in the appellants' favor. An array of four to six small telescopes, called outriggers, is planned to surround the existing twin Keck telescopes, the world's largest optical and infrared telescopes.

Two Hawaiian organizations, the Sierra Club Hawaii Chapter Moku Loa Group, and an individual, appealed the BLNR permit for the Outrigger Project in November 2004 after contested case hearings that lasted through 2003-2004. During the hearings on appeal, Native Hawaiian lineal and cultural descendants, religious practitioners, and cultural experts testified in the appellants' favor.

Appellants argued the management plan offered by the UH Institute for Astronomy (UHIFA) covered only the Outrigger project, was not comprehensive, and did not cover the entire summit.

The appellants claimed without a comprehensive management plan, the rights and resources of the people of Hawaii were at risk. They argued that the management plan offered little protection against hazardous and sewage waste contamination or the protection of Native Hawaiian traditional and customary rights and resources.

An insect species that is a candidate for listing under the federal Endangered Species Act was not sufficiently protected under the management plan, the appellants argued, and public access and use of the Mauna Kea summit was restricted.

Both the BLNR and UHIFA argued that the single project management plan they wrote was sufficient to meet BLNR requirements.

Judge Hara held that, "The resource that needs to be conserved, protected and preserved is the summit area of Mauna Kea, not just the area of the project."

"Allowing management plans on a project by project basis would result in foreseeable contradictory management conditions for each project or the imposition of special conditions on some projects and not others," the judge wrote.

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Eleven of the 13 telescopes on the Mauna Kea summit are shown in this photo. Click here for an interactive version of this photo. (Photo by Richard Wainscoat courtesy UHIFA)
He ruled that granting permits on a project by project basis did not promote long term sustainability of the protected resource as required by state law governing conservation districts.

"Appellants' substantial rights have been prejudiced by the Board's approval of UHIFA's application for the conservation district use permit and for approval of a management plan," Judge Hara ruled.

Lea Hong, one of the pro bono lawyers for the appellants, said, "The plain language of the BLNR rules is clear. Comprehensive means comprehensive. It does not mean piecemeal. It does not mean project-by-project."

"I hope that BLNR will take Judge Hara's decision to heart," Hong said, "and work with the community to protect the precious resource that is Mauna Kea and develop a long term comprehensive management plan for the summit of Mauna Kea that can be a model for other special places in Hawaii and the nation."

"I am thankful," said Kealoha Pisciotta, president of appellant group Mauna Kea Anaina Hou. "This decision is a win for the people, the land and those things that are sacred."

Mauna Kea is profoundly significant in Hawaiian culture and religion, representing the zenith of the Native Hawaiian people's ancestral ties to Creation itself.

Deborah J. Ward, a representative for the Sierra Club, Hawaii Chapter, Moku Loa Group, said, "The Hawaii court of law has finally reinforced what the people of Hawaii have been saying about their love for Mauna Kea. Sierra Club is very gratified that the judge affirms the need for comprehensive planning for its protection."

Some 100 archaeological sites and many traditional cultural properties eligible for listing in National Register of Historic Places are found at the summit of Mauna Kea. The Hawaii State Historic Preservation Division is planning to propose the entire summit for listing in the National Register as a historic district and cultural landscape.

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Appellant Paul Neves of the The Royal Order of Kamehameha I, established in 1865 by Kamehameha V in defense of the sovereignty of the Kingdom of Hawaii. (Photo courtesy MSU CIS-SS)
Paul Neves of the The Royal Order of Kamehameha I, said, "From the beginning we affirmed that the jurisdiction in Hawaii rests with the right-holders not stakeholders, meaning Hawaiian Kingdom and its peoples, not the University of Hawaii. We will continue to be involved in working with the people of Hawaii towards lasting protection and oversight of Mauna Kea that the people can be proud of."

The outrigger telescope project has run into trouble in the past. In 2003, a federal district court judge held that NASA's environmental assessment for the project was inadequate.

NASA then completed a more detailed environmental impact statement, which concluded that the cumulative impact of 30 years of astronomy development has had a significant, adverse, and substantial impact on the natural and cultural resources of Mauna Kea.

In 2004, the Appellants appealed the conservation district use permit granted to UHIFA.

In early 2006, NASA announced plans to withdraw funding for the Outrigger project due to budget constraints..

NASA and UHIFA have said they are attempting to balance uses of the land, and they argue for the importance of the telescopes on a mountain that offers the best access to clear skies in the northern hemisphere.

Hawaii Governor Linda Lingle has indicated her approval of the project on the grounds that it would offer new jobs to Hawaiians.

NASA has offered $1.85 million towards Native Hawaiian causes, an offer that Native Hawaiians say does not address the desecration of the sacred mountain.

The summit and cinder cones upon which the observatory facilities are built are part of a unique ecosystem out of which have evolved 11 species of indigenous Hawaiian arthropods found nowhere else in the world, including the Wekiu bug, Nysius wekiuicola, a candidate for federal listing under the Endangered Species Act.

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The Wekiu bug is a candidate for federal listing under the Endangered Species Act. (Photo courtesy Pacific Analytics)
The Wekiu bug, which has a substance like anti-freeze in its blood, lives solely on the high elevation cinder cones of Mauna Kea. Over the past several decades, 90 percent of its range has been destroyed by observatory development.

KAHEA - the Hawaiian-Environmental Alliance as a conservation group that is pursuing the listing of the Wekiu bug and has worked to safeguard the Mauna Kea summit.

Commenting on the judge's ruling, KAHEA Executive Director Cha Smith said, "We commend this valiant grassroots effort to protect an environmentally unique and fragile ecosystem and profoundly sacred area."

"This decision underscores and validates 30 years of public outcry saying enough is enough. No more development on the mountain," Smith said. "UH, NASA and the telescope industry have run roughshod over the laws of Hawaii and broad public opposition to the outrigger project."

Astronomers fear that continued opposition to further development on the Mauna Kea summit could jeopardize plans to bring the next generation of large telescopes to Hawaii, including the world's largest telescope, a $700 million project.

Appellant Clarence Ching, a Native Hawaiian, said the effects of the judge's decision will be far-reaching. "This is a precedent setting case; it will help not only Mauna Kea but Haleakala as well, since Haleakala is also slated for more astronomy development."

Haleakala on the island of Maui is the site of the the first telescope of the Panoramic Survey Telescope and Rapid Response System, or Pan-STARRS - intended to detect asteroids that threaten to impact the Earth in locations hazardous to humanity.

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Blessing the new PS1 telescope on the summit of Haleakala. June 30, 2006. (Photo by Rob Ratkowski courtesy HAA Maui)
On June 30 in a ceremony on the summit of Haleakala, the first Pan-STARRS telescope, called PS1, was dedicated.

In 2002, UHIFA received a $3.4 million grant from the Air Force Research Laboratories to design Pan-STARRS to detect very faint objects as well as asteroids. A telescope on Haleakala is scheduled to start scanning the skies for "killer asteroids" in 2010.

Institute for Astronomy Director Rolf Kudritzki described the dedication of PS1 as "a historic event, since Pan-STARRS is the most important University of Hawaii telescope project in 30 years."

The telescope's mirror is only 71 inches in diameter, much smaller than the twin Keck telescopes on Mauna Kea, whose mirrors are nearly 400 inches each.

What will make PS1 unique is that it will be equipped with the world's largest digital camera, currently under construction at the UH Institute for Astronomy. This camera will contain 1.4 billion pixels - about 300 times more than is found in a typical commercial digital camera.

Each night, the PS1 telescope will produce about 2,000 gigabytes of data, most of which will be sent by optical fiber to be analyzed at the Maui High Performance Computing Center in Kihei.