(BIVN) – The Sierra Club’s Hawaiʻi Island Group is supporting a petition before the state Land Use Commission asking for a ruling on the district classification of the Mauna Kea summit.

Deborah Ward, chair of the Hawaiʻi Island Sierra Club, returned to Hilo’s Grand Naniloa Hotel Crown Room – the same room where she participated in the lenghty Thirty Meter Telescope contested case hearing a few years ago – and testified on Thursday morning.

Ward spoke in favor of the Petition filed by Kuʻulei Higashi Kanahele and Ahiena Kanahele, asking for a “Declaratory Order Concerning the invalid classification of the de facto and improper industrial use precinct on approximately 525 acres of State Land Use Conservation District lands” on Mauna Kea.

Here is Ward’s written testimony:

Dear Chair Scheuer, Vice Chair Cabral, and members of the Land Use Commission:

The members of the Sierra Club submit this testimony in SUPPORT of the Kanaheles’ petition.

(1) Fifty years after a general lease was issued in 1968 to the University of Hawaii to allow the construction of a single (“an observatory”) on the summit of Mauna Kea, The University has built (some with after-the-fact permits) 22 structures in the summit region, in the Conservation District. There appears to be no end in sight, as a new telescope has been proposed despite the lack of mention in the Comprehensive Management Plan approved in 2009. Sadly, the existing telescopes built on Mauna Kea have created a de facto urban district outside of LUC procedures.

The years of conflict over land use at the summit of Mauna Kea could have been avoided if only the University of Hawaiʻi (UH) had been honest about its intentions to urbanize this conservation district from the start. If UH had been straight-forward about its intentions to construct over a dozen industrial structures in the conservation district, and followed the proper procedures to authorize the use of the summit in this way, then it would have first sought approval from the Land Use Commission to change the boundary designation for this area from conservation to urban. If UH had followed this procedure, then the public, state agencies, UH, and all telescope development advocates would have had clear guidance on what was allowed and not allowed on the summit of Mauna Kea.

But UH did not do that. Instead UH chose to present every new telescope project as the last telescope project, making unenforceable promises to decommission deteriorating facilities and better “manage” the conflict between conservation and urbanization.

The fact is: none of the additional 12 telescopes on Mauna Kea should have been built without express authorization from the Land Use Commission. That authorization comes in the form of a district boundary amendment. There was no LUC review of the appropriateness of an urban district on the summit of Maunakea. This deprived the Kanaheles, and all other citizens, of a legally required opportunity to protect their rights. Because UH failed to properly amend the boundary designation for the summit of Mauna Kea before constructing dozens of industrial structures, we urge the Land Use Commission to find that UH improperly urbanized the summit area of Mauna Kea.

(2) We hold that the Conservation District set lands aside for special protection, and that the criteria set out under the administrative rules identify the natural and cultural resource protections set out under the constitution for a safe and healthful environment. BLNR does not have the authority to allow industrialization within the Conservation Districts, and Mauna Kea is no exception. We hold that no further construction on Mauna Kea summit areas be undertaken, because such action would need to comply with LUC boundary amendment procedures to reclassify conservation lands into the urban district. No, in fact, Mauna Kea summit region is a National Natural Landmark, a State Historic District, a Traditional Cultural Property, and a unique ecosystem with endemic flora and fauna found nowhere else on earth. As such, Mauna Kea deserves the highest protected land use designation!

We do NOT support having Mauna Kea designated as an urban district. We DO support having any future construction proposed for Mauna Kea summit areas require an urban designation by LUC. If UH had properly followed this procedure, it would have followed mandated boundary amendment procedures, and would have ensured an opportunity for public involvement and legal scrutiny appropriate for this magnitude of change.

3) Even if “an observatory” is allowed under the general lease, “the current situation–thirteen scientific laboratories, other research facilities, and associated offices, parking lots, and utilities,” ; transportation and storage of hazardous materials; and noise from construction, air conditioners, and telescope operations–is inconsistent with allowed conservation district uses. In a “management plan” developed without the oversight or approval of BLNR or LUC, the University designated an “Astronomy Precinct” without defined boundaries, to justify increasing the land use intensity within the summit region’s most vulnerable alpine ecosystem, and within the realm of wao akua, possibly the most culturally revered site in the Pacific. The “astronomy precinct “was cut out from the rest of the conservation district and targeted for intense development without approval from the only oversight agency with authority to designate such a precinct.

The Land Use Commission (LUC), has the legal authority to hear this petition and, you have constitutional obligations to protect public trust resources and traditional and customary rights. The LUC has the unique authority to declare what uses are appropriate in which districts, and to also reclassify lands from one district to another or to amend district boundaries. Under Article XI, § 1 of the Hawaiʻi State Constitution, you are required to “conserve and protect Hawaiʻi’s natural beauty and all natural resources, including land, water, air, minerals and energy sources, and shall promote the development and utilization of these resources in a manner consistent with their conservation and in furtherance of the self-sufficiency of the State. All public natural resources are held in trust by the State for the benefit of the people.”

Further, Article XII, § 7 of the Hawaiʻi Constitution provides: “The State reaffirms and shall protect all rights, customarily and traditionally exercised for subsistence, cultural and religious purposes and possessed by ahupuaʻa tenants who are descendants of native Hawaiians who inhabited the Hawaiian Islands prior to 1778, subject to the right of the State to regulate such rights.”

The Hawaiʻi Supreme Court went on to later interpret this section of the Hawaiʻi State Constitution to impose an affirmative duty “to preserve and protect traditional and customary native Hawaiian rights.” You have the opportunity to do what is pono, follow the law, and uphold your trust duty with respect to these public trust lands.

Regardless of the developer or the proposed project, land use laws should be applied and enforced equally. Here, the University of Hawaiʻi must follow State Land Use laws. The University of Hawaiʻi should be required to follow proper processes as defined by law .

Sierra Club members, including Mae Mull, Nelson Ho, Deborah Ward, Fred Stone, Cory Harden, and many others have been providing testimony on EIS documents and public hearings, sitting on committees, and taking part in contested case hearings since the 1970’s. Sierra Club et al prevailed in a contested case hearing regarding a proposed 4-8 outrigger expansion of the Keck telescopes, resulting in Judge Hara’s order requiring the development of a Comprehensive Management plan to consider the protection and appropriate management of the Conservation District on Mauna Kea. Despite the protections set out in the state constitution, the administrative rules, and the management plans dating back to 1977 to today, and despite the Legislative Auditor’s reports, dating back to 1998, and several since then, outlining the failures of management by the University and DLNR, the summit region has been transformed into an area where visual elements of wilderness have been obstructed, ecosystems have been impacted, cultural and religious actions of native practitioners have been restricted and discouraged, documented sewage spills, hazardous waste releases, and unlined cesspools continue, and the management has failed to address the legitimate concerns of the people of the island.

We respectfully ask that you GRANT the Kanahelesʻ petition for declaratory order to ensure that proper land use procedures are followed for the ecologically vulnerable and culturally significant public trust lands of Mauna Kea.

Big Island Video News will have more from Thursday’s Land Use Commission meeting in Hilo.