This is another fairly common myth about the existing telescopes on Mauna Kea, that most of the telescopes were built without permits or issued “after-the-fact” permits after construction.
This is another myth built on a kernel of truth, the two earliest of the remaining thirteen telescopes were built without proper conservation district use permits in place. What is now Hoku Kea was built by the Air Force Cambridge Research Laboratories and given to the university a couple years later. The UH88 was built by the University of Hawaii in 1968.
As this was the State of Hawaii building on state land, apparently things were a bit lax. In retrospect this is no surprise, the state government was scarcely a decade old at this point and many of the administrative rules and regulations we now take for granted were still being written and implemented.
This is where the myth comes in, as somehow the other telescopes are accused of the same issue. The claim often made is that “most of these structures were un-permitted”. This is often claimed as part of the evidence for mismanagement by the university.
This is incorrect… All of the remaining telescopes were built with proper permits in place. The key permits are the Conservation District Use Permits or CDUP’s that allow the use of state land on the summit of Mauna Kea. Permit numbers and dates are listed in the table below…
In the wake of the supreme court decision on the TMT conservation district use permit last month, many like myself have been reading the opinions of the court. I was pleased to see that the justices were very clear in their views, there is very little room for any future legal steps in this case. This decision sets clear precedents for future land use cases that will certainly occur over the same issues.
The majority opinion is a systematic refutation of each argument made by telescope opponents. This is particularly true in the numerous trivial matters that opponents attempted to inflate into major issues. Issues like Judge Amanoʻs ʻImiloa membership, or the brevity of some responses to the absolute snowstorm of submissions in the contested case.
In addition to the majority opinion you may read the quite interesting concurring opinion by Justice Pollack. He agrees with the majority on the final result, but promotes using existing frameworks to judge land use cases such as this. It is also interesting the dissenting Justice Wilson joins in this concurring opinion, at least for the first three parts.
The dissent written by Associate Justice Michael Wilson was published almost two weeks later than the majority opinion. The reason for this delay is not given, it is possibly a result of Justice Wilson analyzing the majority opinion and responding to it in his dissent.
As is often the case with decisions like this, it is more interesting to read the dissent than the majority opinion. Any flaws or weaknesses in the case can be examined and can be more informative. This case is an exception to that, the dissent is interesting, if for somewhat different reasons.
The takeaway is that the petitioners in the contested case failed to prove their claims. Indeed, much of the report is quite critical to a number of claims made by the petitioners.
There are numerous claims that seem quite odd to anyone familiar with the summit, claims that were easily disproved during the investigative process. An “extensive fencing network”? What fences? Anyone who has visited the summit knows that there are no fences around the observatories at the summit. There are some small enclosures necessary to keep people safe around storage tanks and such. Well below the summit the VLBA antenna is enclosed for safety reasons, as is an electrical substation at Hale Pohaku.
49. Petitioners contend that a purported “subdivision” of land among the various existing observatories is evidenced by an “extensive fencing network.” Exhibit A-202 at 22. As was plain during the site visit, there is no “fencing network,” much less an “extensive” one, in the summit region of Mauna Kea.
Claims that the TMT would negatively impact the waters of Lake Waiau? The TMT is not located anywhere near the lake’s watershed. The petitioners engaged in legal mudslinging, throwing as many claims as possible at the case to see what would stick, a legal tactic I dislike immensely. Making such unfounded claims merely serves to discredit the petitioners, distracting the conversation away from the real issues involved in sharing the summit region.
466. Considering all of the evidence, including but not limited to the testimonies of Drs. Liu and Kauanui, and giving such evidence due weight, Petitioners have not offered reliable, probative, substantial, or credible evidence, scientific or otherwise, to suggest that the Project will be harmful to the health, safety, and welfare of native Hawaiians or anyone else.
There are reasonable cultural objections to the use of the mountain for astronomy. These are what must be addressed in this process. Can use of the summit be shared among the various parties? The report clearly comes to the conclusion that we can share the summit and that the presence of the new telescope can be minimized through proper measures.
101. Petitioners did not offer reliable, probative, substantial, and credible evidence, whether from expert or lay witnesses, that would support the conclusion that the TMT Project would cause substantial adverse impact to plants, aquatic life and wildlife, cultural, historic, and archaeological sites, minerals, recreational sites, geologic sites, scenic areas, ecologically significant areas, or watersheds.
There is a list of conditions, which seem quite reasonable… The staff must receive cultural and environmental education on the special nature of the summit of Mauna Kea. We do this at Keck, something I usually find quite interesting. They must use a completely enclosed waste water system. There must be an invasive species plan. Conditions around the construction site must be monitored, including arthropod populations, during construction and for two years afterwards. There is an extensive list that goes on from here…
e. The proposed land use, including buildings, structures, and
facilities, will be compatible with the locality and surrounding areas, appropriate
to the physical conditions and capabilities of the specific parcel or parcels
Will this be the end of the legal process? No. There is an additional hearing for the petitioners to take place before the Hearings Officer so that both sides may review the findings. It is also likely that at least one lawsuit will be filed in reaction to issuance of the CDUP. Unless there is some new legal issue these are unlikely to progress very far. The process so far has been quite exhaustive, any further legal action would simply be a rehashing of what we have already heard.