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In re Contested Case Hearing Re Conservation District Use Application (CDUA) HA-3568

Supreme Court of Hawaii

November 9, 2018

IN THE MATTER OF CONTESTED CASE HEARING RE CONSERVATION DISTRICT USE APPLICATION (CDUA) HA-3568 FOR THE THIRTY METER TELESCOPE AT THE MAUNA KEA SCIENCE RESERVE, KA'OHE MAUKA, HĀMĀKUA HAWAI'I, TMK (3) 404015:009

          APPEAL FROM THE BOARD OF LAND AND NATURAL RESOURCES (BLNR-CC-16-002 (Agency Appeal))

          DISSENTING OPINION

          Michael D. Wilson Judge

         I. Introduction

         The degradation principle. The Board of Land and Natural Resources (BLNR) grounds its analysis on the proposition that cultural and natural resources protected by the Constitution of the State of Hawai'i and its enabling laws lose legal protection where degradation of the resource is of sufficient severity as to constitute a substantial adverse impact. Because the area affected by the Thirty Meter Telescope Project (TMT or TMT project) was previously subjected to a substantial adverse impact, the BLNR finds that the proposed TMT project could not have a substantial adverse impact on the existing natural resources. [BLNR Decision and Order, p. 219, COL 180] Under this analysis, the cumulative negative impacts from development of prior telescopes caused a substantial adverse impact; [BLNR Decision and Order, p. 220, COL 183] therefore, TMT could not be the cause of a substantial adverse impact. As stated by the BLNR, TMT could not "create a tipping point where impacts became significant." [BLNR Decision and Order, p. 222, COL 200] Thus, addition of another telescope- TMT-could not be the cause of a substantial adverse impact on the existing resources because the tipping point of a substantial adverse impact had previously been reached.

         Appellants object to the principle advanced by the BLNR that "without the TMT Project, the cumulative effect of astronomical development and other uses in the summit area of Mauna Kea have previously resulted in impacts that are substantial, significant and adverse" [BLNR Decision and Order, p. 220, COL 183] and, therefore, "[t]he level of impacts on natural resources within the Astronomy Precinct of the [Mauna Kea Science Reserve (MKSR)] would be substantially the same even in the absence of the TMT Project[.]" [BLNR Decision and order, p. 221, COL 195] In other words, BLNR concludes that the degradation to the summit area has been so substantially adverse that the addition of TMT would have no substantial adverse effect. Thus, while conceding that Mauna Kea receives constitutional and statutory protection commensurate with its unchallenged position as the citadel of the Hawaiian cultural pantheon, the BLNR applies what can be described as a degradation principle to cast off cultural or environmental protection by establishing that prior degradation of the resource-to a level of damage causing a substantial adverse impact-extinguishes the legal protection afforded to natural resources in the conservation district. The degradation principle ignores the unequivocal mandate contained in Hawai'i Administrative Rules (HAR) § 13-5-30(c)(4) prohibiting a Conservation District Use Permit (CDUP) for a land use that would cause a substantial adverse impact to existing natural resources. The BLNR substitutes a new standard for evaluating the impacts of proposed land uses, a standard that removes the protection to conservation land afforded by HAR § 13-5-30 (c) (4) . Using the fact that the resource has already suffered a substantial adverse impact, the BLNR concludes that further land uses could not be the cause of substantial adverse impact. Under this new principle of natural resource law, one of the most sacred resources of the Hawaiian culture loses its protection because it has previously undergone substantial adverse impact from prior development of telescopes. The degradation principle portends environmental and cultural damage to cherished natural and cultural resources. It dilutes or reverses the foundational dual objectives of environmental law- namely, to conserve what exists (or is left) and to repair environmental damage; it perpetuates the concept that the passage of time and the degradation of natural resources can justify unacceptable environmental and cultural damage.[1]

         It is noteworthy that the party responsible for the substantial adverse impact to this protected resource is the State of Hawai'i (State). It is uncontested that the State authorized previous construction within the Astronomy Precinct of the MKSR that created a substantial adverse impact. Thus, the party that caused the substantial adverse impact is empowered by the degradation principle to increase the damage. Now the most extensive construction project yet proposed for the Astronomy Precinct-a 180-foot building 600 feet below the summit ridge of Mauna Kea-is deemed to have no substantial adverse impact due to extensive degradation from prior development of telescopes in the summit area. The degradation principle renders inconsequential the failure of the State to meet its constitutional duty to protect natural and cultural resources for future generations. It renders illusory the public trust duty enshrined in the Constitution of the State of Hawai'i and heretofore in the decisions of this court to protect such resources. And its policy of condoning continued destruction of natural resources once the resource value has been substantially adversely impacted is contrary to accepted norms of the environmental rule of law.

         II. The BLNR and the Majority Fail to Comply with the Requirement of HAR § 13-5-30(c)(4) that the Impact of the Thirty Meter Telescope upon the Existing Adversely Impacted Cultural Resource Be Considered

         HAR § 13-5-30(c)(4) prohibits a proposed land use in the conservation district that will cause a substantial adverse impact to existing natural resources: "In evaluating the merits of a proposed land use, . . . [t]he proposed land use will not cause substantial adverse impact to existing natural resources within the surrounding area, community, or region." Because "natural resources" includes cultural resources, [2] land use cannot occur in the conservation district if it causes a substantial adverse impact to existing cultural resources. HAR § 13-5-30(c)(4) sets the standard to evaluate whether the proposed land use project should be permitted. Under this standard, the impact of the proposed land use must be considered with an understanding of the condition of the existing natural resources. If the land use will cause a substantial adverse impact to the existing natural resources, it is prohibited. The degradation principle violates HAR § 13-5-30(c)(4) by removing the requirement to consider the effect of a proposed land use on the existing natural resource. The degradation principle reverses the requirement that the impact of the new land use be considered; instead, the degradation principle requires that the impact not be considered once the existing resource has suffered a substantial adverse impact. Consideration of the impacts of a proposed land use becomes irrelevant because the existing resource is already substantially degraded [3].

         It is undisputed that the relevant area of the TMT project has suffered a substantial adverse impact to cultural resources due to the construction of twelve[4] telescopes: "[T]he cumulative effects of astronomical development and other uses in the summit area of Mauna Kea have previously resulted in impacts that are substantial, significant and adverse." [BLNR Decision and Order p. 220, COL 183] Understandably, the proscription against imposition of a substantial adverse impact upon conservation district land contained in HAR § 13-5-30(c)(4) must be applied in light of the purpose of the chapter of which it is a part. See Kilakila, 138 Hawai'i at 405, 382 P.3d at 217. The purpose of HAR Title 13, Chapter 5 is to conserve, protect and preserve the important natural and cultural resources of the State of Hawai'i in the conservation district: "The purpose of this chapter is to regulate land-use in the conservation district for the purpose of conserving, protecting, and preserving the important natural and cultural resources of the State through appropriate management and use to promote their long-term sustainability and the public health, safety, and welfare." HAR § 13-5-1. To effectuate the protection of cultural resources in the conservation district mandated in HAR Chapter 13-5, HAR § 13-5-30(c)(4) was adopted to prohibit land use that will cause a substantial adverse impact on cultural resources. The legislative history, the record of legislative intent preceding HAR § 13-5-30(c)(4), is an unequivocal expression of intent to protect conservation land from the consequences of the degradation principle. Rather than promote further degradation of conservation land that, in its "existing" condition, has been substantially adversely impacted, i.e., degraded, the Hawai'i State Legislature (legislature) created a management framework that protects against further degradation. The companion statute that authorized the implementation of HAR § 13-5-30(c)(4) is HRS Chapter 183C. Its purpose is to conserve, protect, and preserve natural and cultural resources in the conservation district-not to establish a process permitting the degradation of such a resource once the resource has been substantially adversely impacted:

The legislature finds that lands within the state land use conservation district contain important natural resources essential to the preservation of the State's fragile natural ecosystems and the sustainability of the State's water supply. It is therefore, the intent of the legislature to conserve, protect, and preserve the important natural resources of the State through appropriate management and use to promote their long-term sustainability and the public health, safety and welfare.

HRS § 183C-1 (2011). The adoption of HAR § 13-5-30(c)(4) in 1994 was intended to implement the purpose of HRS Chapter 183C, namely "clarify[ing] the department's jurisdictional and management responsibilities within the State conservation district." H. Stand. Coram. Rep. No. 491, in 1994 House Journal, at 1057. To clarify the responsibility of the State to conserve, protect, and preserve natural resources, mandatory language prohibiting land use that causes substantial adverse impact on natural resources, including cultural resources, was codified.[5] The legislative history of HRS § 183C-1 and HAR § 13-5-30(c)(4) contains no discussion of or allusion to the degradation principle; instead, its import is to provide more clear protection for Hawaii's natural resources by preventing further damage to conservation land already subjected to substantial adverse impacts.[6]

         As noted, the BLNR's decision reverses the standard of protection in HAR § 13-5-30(c)(4) requiring evaluation of the impacts of TMT on existing natural resources. The new "reversed" standard ignores the fact that the existing resource has been substantially adversely impacted. The degradation principle eliminates the analytical requirement of HAR § 13-5-30(c)(4) that a determination be made as to whether the proposed land use will have a substantial adverse impact on the resource as it exists. Instead, the degradation principle provides that, once the resource has been substantially adversely impacted, the impact of the proposed land use cannot cause a substantial adverse impact. In this way, the BLNR omits the requirement of HAR § 13-5-30 (c) (4) that, regardless of whether the existing resource has previously sustained substantial adverse impact, the impacts of the construction of TMT on existing resources must be considered to determine whether TMT will cause a substantial adverse impact. The BLNR's decision directly contradicts this court's holding in Kilakila that required the proposed land use to be considered in the context of "existing natural resources within the surrounding area, community, or region." HAR § 13-5-30(c)(4); see 138 Hawai'i at 403, 382 P.3d at 215 (considering the impacts of a telescope in the context of the cultural resources of the site on which it was proposed to be located).

         Thus, the BLNR and the Majority acknowledge past telescope projects have had a substantial adverse impact on cultural resources, [7] specifically that the cumulative effect of astronomical development on Mauna Kea and other uses of the summit area "have already resulted in substantial, significant and adverse impacts[.]" Majority Opinion at 55. Yet, based on the fact that the condition of the existing resource has already reached the point of substantial adverse impact, the proposed land use escapes scrutiny as to whether it will cause a substantial adverse impact; the "tipping point" beyond which impacts become substantial has already been reached due to the cumulative impacts of prior telescope development. The TMT project cannot, therefore, be the tipping point to cause a substantial adverse impact. The signature purpose of HAR § 13-5-30(c) (4), to prevent land use that will cause a substantial adverse impact to natural resources in the conservation district, is extinguished. Without the protection afforded by HAR § 13-5-30 (c) (4) and HRS § 183C-1, the way is open to a conclusion fraught with illogic: the construction of a telescope the magnitude of TMT will not cause a substantial adverse impact to a natural resource of undisputed significant cultural value-notwithstanding that the resource has already been substantially adversely impacted by construction of twelve existing buildings of lesser size. The real severity of the impact to the resource is made apparent by the effort of the BLNR and the Majority to mitigate the project's effects with conditions that-though ineffective-support that Mauna Kea will be substantially adversely impacted when TMT is constructed.[8]

         The degradation principle is antithetical to the intent expressed in HAR Chapter 13-5 to provide protection to natural resources in the conservation district. It causes cultural resources protected from substantial adverse impact to lose protection once they are substantially impacted in an adverse manner. The import of this method of rejecting the protection afforded to conservation land is the authorization of degradation of resources with utmost cultural and environmental importance. And so it has happened in the instant case.

         III. The Degradation Principle Violates Norms of Environmental Law

         Norms of environmental law support the legislature's intent to protect natural resources on conservation land-notwithstanding that it has been previously subjected to a substantial adverse impact. The degradation principle, on the other hand, violates norms of environmental law. It allows further environmental and cultural damage to occur in a region of great cultural significance because the cultural resource has been previously substantially degraded and compromised. This justification for acceleration of damage to a protected resource runs contrary to the intent embodied in Article XII, section 7 and Article XI, section 9 of the Constitution of the State of Hawai'i (Hawai'i Constitution) to protect cultural and environmental rights. The degradation principle also contravenes international law that protects the outstanding value of cultural and natural resources, notwithstanding degradation to the resource. These norms include intergenerational equity, polluter pays, and non-regression.

         A. Cultural and Environmental Rights Embodied in the Hawai'i Constitution

         The degradation principle contravenes provisions of the Hawai'i Constitution that protect cultural and environmental rights. Article XII, section 7 affirms and protects the rights of Native Hawaiians to engage in traditional and customary practices. Under Article XI, section 9, every person holds a substantive "right to a clean and healthful environment[.]" Contrary to Article XII, section 7, and Article XI, section 9, the degradation principle teaches that once a natural resource in the conservation district is degraded to the degree that it has suffered a substantial adverse impact, it is no longer worthy of protection; it bares insufficient worth to protect the resource from additional proposed development.

         This court has held that "M"t]he right to a clean and healthful environment' is a substantive right guaranteed to each person by Article XI, section 9 of the Hawai'i Constitution[.]" In re Application of Maui Elec. Co., 141 Hawai'i 249, 261, 408 P.3d 1, 13 (2017) (quoting Haw. Const, art. XI, § 9). Article XI, section 9 provides:

Each person has the right to a clean and healthful environment, as defined by laws relating to environmental quality, including control of pollution and conservation, protection and enhancement of natural resources. Any person may enforce this right against any party, public or private, through appropriate legal proceedings, subject to reasonable limitations and regulation as provided by law.

         In Maui Electric, this court classified this right as "a property interest protected by due process." Maui Elec., at 261, 408 P.3d at 13. The right to a clean and healthy environment is enumerated in laws relating to the environment including, for example, those that prohibit a proposed land use in a conservation district when it will "cause [a] substantial adverse impact to existing natural resources[.]" HAR § 13-5- 30(c)(4). The degradation principle undermines the right to a clean and healthy environment because it allows unimpeded destruction of the environment once a determination is made that the natural resource protected from substantial adverse impacts within the conservation district has been subject to "substantial, significant and adverse" impacts from development. Majority Opinion at 55. Similarly, the degradation principle vitiates the right to practice Native Hawaiian traditional and customary practices embodied in Article XII, section 7 of the Hawai'i Constitution[9] whenever the cultural practices have been subjected to a substantial adverse impact in the conservation district.

         B. Intergenerational Equity

         The State holds Hawaii's natural resources in trust "[f]or the benefit of present and future generations[.]"[10] Haw. Const, art. XI, § 1. This court has consistently emphasized the responsibility held by the State to ensure that the rights of future generations are preserved. E.g., Kauai Springs, Inc. v. Planning Coimii'n of Cty. of Kaua'i, 133 Hawai'i 141, 172, 324 P.3d 951, 982 (2014) ("The public trust is, therefore, the duty and authority to maintain the purity and flow of our waters for future generations and to assure that the waters of our land are put to reasonable and beneficial uses."); Kelly, 111 Hawai'i at 221-23, 140 P.3d at 1001-03 (discussing this court's adoption of the public trust doctrine and the principle of intergenerational equity embodied therein); Waiahole I, 94 Hawai'i at 141, 9 P.3d at 453 ("Under the public trust, the state has both the authority and duty to preserve the rights of present and future generations in the waters of the state."); Robinson, 65 Haw. at 674, 658 P.2d at 310 (recognizing the State's concomitant duty to protect water for future generations and ensure that water is "put to reasonable and beneficial uses") .[11]

         The BLNR promotes an analysis that requires it to ignore the impacts to future land uses arising from the cumulative effect of twelve telescopes built over the last fifty years in the MKSR. Future generations do not receive the benefit of protection of the cultural resource in the future because past substantial adverse impacts render it unnecessary to determine future impacts from TMT. In Unite Here! Local 5 v. City & Cty. of Honolulu, 123 Hawai'i 150, 231 P.3d 423 (2010) this court rejected a similar decision to ignore impacts of a proposed land use. In Unite Here!, this court emphasized the importance of considering future impacts from proposed development decisions. The case arose from a proposed expansion of Kuilima Resort at Turtle Bay (Kuilima) on the North Shore of O'ahu. Unite Here!, 123 Hawai'i at 154, 231 P.3d at 427. In 1985, Kuilima submitted an environmental impact statement (EIS) to the Department of Land Utilization. Id. The EIS identified various adverse impacts of the development including "drainage, traffic, dust generation, water consumption, marsh drainage input, loss of agricultural uses, construction noise, air quality, and sold waste disposal." Id. at 155, 231 P.3d at 428. Over the course of the next twenty years, the project encountered several delays. Id. at 157, 231 P.3d at 430. In 2005-twenty years after the permit was granted-Kuilima submitted a Site Development Division Master Application Form and contended there was no basis for a supplemental EIS (SEIS) to assess changes to the surrounding area. Id. at 154, 159, 231 P.3d at 427, 432. The Department of Planning and Permitting agreed; it ruled that no SEIS was required because "[n]o time frame for development was either implied or imposed by the City Council as part of its [original] approval." Id. at 159, 231 P.3d at 432. Kuilima was allowed to proceed without conducting a SEIS.

         Despite the fact that twenty years had passed since the initial project proposal, the circuit court affirmed the Department of Planning and Permitting's decision. Id. at 166-67, 231 P.3d at 439-40. It ruled "that a SEIS is required only when there is a substantive project change and . . . that, as a matter of law, the timing of the project had not substantively changed." Id. This meant that absent a substantial change in the proposal itself, the original "EIS would remain valid in perpetuity and no SEIS could ever be required[.]" Unite Here! Local 5 v. City & Cty. of Honolulu, 120 Hawai'i 457, 472, 209 P.3d 1271, 1286 (App. 2009) (Nakamura, J., dissenting), vacated, 123 Hawai'i 150, 231 P.3d 423 (2010).

         This court reversed the ICA's decision. The court found it significant that substantial, cumulative changes in the area occurred between 1985 and 2005. Unite Here!, 123 Hawai'i at 179, 231 P.3d at 452. This included a dramatic increase in traffic and the introduction of endangered and threatened species in the area, including the monk seal and green sea turtle. Id. The court held that the timing of the project had substantively changed and this change had a significant effect on the project. Id. at 180, 231 P.3d at 453. The passage of twenty years created "an 'essentially different action'" than the one proposed, necessitating an SEIS. Id. at 178, 231 P.3d at 451. In Unite Here!, this court contemplated "changes in the project area and its impact on the surrounding communities[.]" Id. In doing so, we considered the impacts of the proposed development on the rights and interests of future generations. Rather than freeze the analysis of the impacts by considering only a period twenty years in the past, this court recognized that the interests of subsequent generations required that the impacts on the resource be considered at the time the construction was to occur.

         The BLNR would return to the proposition rejected in Unite Here! that a project need not take into consideration the impacts of the proposed land use on the resource as it presently exists. The degradation principle removes the need to consider the impacts of TMT on the existing resource; once the existing cultural resource has been substantially adversely impacted, it is unnecessary to consider whether a future land use would cause a substantial adverse impact. In this way the BLNR ignores the rights of future generations to the protections specifically afforded them by the rule adopted in 1994, which mandates that "the proposed land use will not cause substantial adverse impact to existing natural resources within the surrounding area, community, or region." HAR § 13-5-30 (c) (4) . The legislature did not intend that the rights of future generations to the protection of Mauna Kea be ignored by disregarding the impact of the TMT project on a resource already substantially adversely impacted by the construction of twelve telescopes.

         Application of the degradation principle disregards the rights of future generations. It creates a threshold condition of damage-substantial adverse impact-that, once met, renders the resource available for future degradation. In so doing, the degradation principle presumes there is no natural resource value left to protect. The actions of prior and present generations extinguish the chance for future generations to protect the environmental and cultural heritage that once enjoyed legal protection. Future generations are left with the proposition enshrined in the degradation principle that incremental degradation to "the highest mountain peak in the Hawaiian Islands" and one that "is of profound importance in Hawaiian culture" justifies significant future ...


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