Yesterday we discussed SB933 regarding leases, today we take a look at the last of the three bills involving the leasing of state land in Hawaii.
SB918 contains a large number of small edits to the Hawaii Statutes. All with one effect… Reducing the maximum length of a land lease to 35 rather than 55 years.
Most bills include extensive reasoning for the changes, why the changes are needed, and what the changes would accomplish. The text of SB918 gives no such supporting information. Why is this change needed?
Three bills introduced in the 2019 Hawaii legislature session directly address state land leases. The first of these discussed here on DarkerView was SB905 which attempts to assess reasonable compensation for a lease. The remaining two bills, SB933 and SB918, concerned with leases seem to make sense as well, but also leave questions.
SB933 is another that on first read seems to make sense. This bill would require a rent review on all state land leases every decade. Conditions change, economics change, inflation happens, insuring the state is fairly compensated for the use of state land is in the best interest of the public.
While the language of the change is simple, the impact of that language is not clear. Indeed, it seems strange when considering what a rent review would consist of.
Three bills introduced in the 2019 Hawaii legislature session directly address state land leases. The first of these we will discuss here on DarkerView is SB905 which attempts to assess reasonable compensation for such a lease.
When considering the issues of land leases in Hawaii there are a few important things to consider. The vast majority of land in the state is owned by either the state itself, or by a handful of large landowners. These entities do not typically sell land, rather much of the land is in long term lease to the current users.
A significant number of commercial developments, some military bases, and large resorts sit upon leased land. Malls, apartment complexes, and a surprising number of private homes are on leased land. This leads to a wide range of potential issues when the leases run out or are open to renegotiation. Sometimes it gets ugly, with families evicted from homes that have been in the family for generations.
As one would expect, the leasing of state land can quickly become a hot political issue. A great deal of land use law, and an even larger body of case law revolves around these leases.
The most direct of Senator Kahele’s attacks on Mauna Kea astronomy is contained in SB916. Indeed this one bill is the most revealing in understanding the motivation behind the remainder of the Mauna Kea bills we have been discussing.
The provisions of SB916 are particularly troubling. While clearly motivated as an attack on astronomy facilities on the summit of Mauna Kea, provisions of the bill go far beyond the mauna, certainly impacting any use of state land on all islands.
In reading the bill one particular provision stands out, a prohibition of any impact on surrounding resources. This should be a glaring issue to anyone considering supporting this measure. This could in effect prohibit any use of public land…
The bill is simply a wish list for opponents of any development, language that can be used as grounds to sue and obstruct development over a wide range of real or perceived issues.
I have to admit I was worried that the decision could go against the TMT project.
It did not.
Earlier today hearing officer Judge Ricky May Amano recommended that the TMT project be granted a Conservation District Use Permit or CDUP.
The decision is nearly three hundred pages long, none of us has had a chance to do more than skim some of the more interesting sections. Indeed most of us opened the document and skipped straight to page 260 to read the Recommended Decision and Order first.
What I have read appears to be a straightforward reading of the law involving land use. Yes, it is a conservation district, that means that there shall be sufficient management of the project, but does not mean that the project cannot proceed.
We have yet to see the outrage from TMT project opponents. I expect it will be shortly forthcoming and quite vehement.
Where do we go from here? As I understand it the next step is for the DLNR board to vote on the acceptance of the hearing officer’s recommendation and reissue the permit. Of course the next thing to happen after that is the inevitable court challenge. This will go straight to the state supreme court as recent legislation set that as the path for land use cases, skipping the lower courts.
As the TMT contested case drags on we continue to watch. Thanks to the efforts of the staff of Nā Leo TV the entire proceedings are streamed live. Several of the latest witnesses for the University are Hawaiian supporters of the telescope project, it is these voices that I am most interested in hearing.
It is when the questioning begins that things get ugly. Question after question challenges the integrity of the witness. The questions challenge their personal values as if to say “You are not Hawaiian.” Over and over the questions were repeated, each successive question designed to attack the cultural identity of the witness…
“Where did you grow up?”
“How old were you when you learned that?”
“Who taught you that?”
“When was the last time you were on Mauna Kea?”
“When did you last worship on Mauna Kea?”
“Where did your family worship?”
“Do you pray to Poliʻahu?”
“Who are the parents of Poliʻahu?”
We have been through weeks of the TMT permit contested case hearings at this point, with no end in sight. I have often kept the live feed in the corner of my computer screen through the day.
Many of the petitioner’s efforts are well prepared and professional, particularly those from Mauna Kea Anaina Hou. Other are less so, to be expected when the participants are not experienced in legal proceedings.
Other petitioners seem unable or unwilling to understand repeated instructions from the hearing officer. At least most of the grandstanding has settled down as it became apparent that it would not be tolerated in the hearing room and that Judge Amano would evict those who repeatedly disrupted proceedings.
I have not had a chance to attend any of the contested case meetings, they are taking place in Hilo on workdays. Following along by reading all of the court documents is almost as good, maybe better. Big Island Video news has also posted quite a few videos of the proceedings where you can watch and get a feel for the tone and process of the hearings.
All of the filings are available online, posted to the DLNR website. There are now over two hundred filings, with at least a few added almost every day. They detail the legal maneuverings of all of the parties as they make claims and counterclaims over every issue in the case.
It is clear that the telescope opponents have a couple basic strategies, neither of which address the issues. First is simply to delay and obstruct. Every decision is appealed and contested, from who is party to the case, to the selection of the hearing officer herself. Attempts to limit the discussion to the issue at hand have been vigorously contested by those who have other agendas.
One observation is that witness lists of telescope opponents are extensive, 39 persons on the Mauna Kea Anaina Hou (Doc-103 and Doc-104) list alone. To be fair, many of the the opponents do only have a few witnesses to call, but the sheer number of participants makes the resulting numbers a bit excessive. Reading through the various lists I fail to see where each witness will bring unique testimony to the case. In contrast the University and other supporters have very brief witness lists with only a handful of witnesses requested. Certain names do stand out… Dr. Sai, a well known sovereignty proponent. UH Chancellor David Lassner is present. Even Governor Ige has been listed, a request that is already subject to extensive legal wrangling.
A common theme in both the hearing room behavior and in the document opponents claim that they have been subject to personal attacks or harassment. Claims are made that they are “under duress” despite the fact that participation in this proceeding is entirely voluntary. Judge Amano has gone out of her way to explain methods by which opponents could participate in the hearings without being full parties in the process and subject to the associated paperwork and attendance burdens.
There have been some revisions to the rules as originally proposed. Most notably the closure hours begin at 10pm in place of 8pm, this would allow the VIS to operate the normal evening public program.
I have yet to locate a copy of the final approved rules, it is only a few minutes ago that the decision was approved. I expect they will appear on the DLNR website eventually (Tonight? Monday?). They are effective immediately, I would expect there to be a legal requirement to post them.
It is safe to say that there will be no overnight observing at or near the Mauna Kea VIS. You will need to find a site elsewhere or at least one mile from the access road.
These rules are effective for 120 days, after which we will see what happens. In that time they may be allowed to lapse. It also allows the DLNR time to approve similar, permanent rules through the regular process in place of these emergency rules.
120 days and counting… I make that November 8th, 2015.
Update: Found them!
(a) The area referred to in this rule as the “restricted area” is defined as any lands in the public hunting area that includes the Mauna Kea Observatory Access Road and one mile on either side of the Mauna Kea Observatory Access road.
(b) As used in this rule, the term “transiting” means operating, or being a passenger in, a motor vehicle traveling at a reasonable and prudent speed and having regard to the actual and potential hazards and conditions then existing.
(c) No person shall at any time possess or control in the restricted area any of the following items: sleeping bag, tent, camping stove, or propane burner.
(d) No person shall enter or remain in the restricted area during the hours of 10:00 p.m. to 4:00 a.m., unless the person is transiting through the restricted area on the Mauna Kea Observatory Access Road or is lawfully within or entering or exiting an existing observatory or a facility operated by the University of Hawaii.
As we are all aware, the TMT protests are having direct consequences for everyone who goes to the mountain. Regular mountain users and tourists alike are dealing these consequences. The summit road closed to the public for a second week, the MKVIS also closed, even before these closures the protests had curtailed many activities.
Go the the Mauna Kea Visitor Information Station on the weekends nearest new Moon and you will find telescopes. While the MKVIS telescopes get put away at 10pm there are ‘scopes that are operating late into the night, often still there when dawn colors the sky. These telescopes belong to local amateur astronomers who bring them here to enjoy perfect Mauna Kea skies.