(BIVN) – In a split decision, the Hawaiʻi Supreme Court on Wednesday affirmed a 2019 State Land Use Commission decision that the LUC lacked jurisdiction over the conservation district lands on Maunakea.

Back in 2019, at the height of the conflict over the proposed building of the Thirty Meter Telescope on Maunakea, the State Land Use Commission rejected a petition that asked for a Declaratory Order concerning what Kuʻulei Higashi Kanahele and Ahiena Kanahele called “the invalid classification of the de facto and improper industrial use precinct” on conservation district lands on the mountain. With a 5 to 2 vote, the commission decided it did not have jurisdiction over the issue. 

In the majority opinion of the court, written by Associate Justice Nakayama, and joined by Chief Justice Recktenwald and Circuit Judge Cataldo (assigned by reason of vacancy):

This is another case in the series of proceedings challenging the construction of the Thirty Meter Telescope (TMT). However, unlike prior proceedings that only sought to prevent the TMT from being built, Appellants Kuʻulei Higashi Kanahele and Ahiena Kanahele (collectively, the Kanaheles) seek to use the Land Use Commission’s (the Commission or LUC) districting authority in a way that could compel the removal of all astronomy facilities located within the Astronomy Precinct by petitioning the Commission for declaratory relief.

On November 29, 2019, the Commission issued a written Order Denying Petition for Declaratory Order (LUC Order). The Commission explained that it lacked jurisdiction (1) to use the declaratory ruling procedure to undermine decisions already made, and (2) to regulate land uses in the Astronomy Precinct because the legislature granted such authority to the Department of Land and Natural Resources (the Department or DLNR).

The following day, the Kanaheles appealed to this court. The Kanaheles seek to use the Commission’s declaratory ruling authority (1) to challenge past decisions that astronomy facilities are permissible within conservation districts and (2) to contravene the Department’s power to regulate conservation district uses. Contrary to the Kanaheles’ claim that the Commission may restrict land uses through Hawaiʻi Revised Statutes (HRS) § 205-2(e),1 the statute merely identifies uses that are permitted within conservation districts. The statute does not authorize the Commission to exclude or enforce certain land uses within conservation districts.

The majority decided that the Hawaiʻi Supreme Court has jurisdiction over the Kanaheles’ appeal, and that the Land Use Commission correctly determined that it lacked jurisdiction over the Kanaheles’ petition. The majority also ruled that the LUC correctly interpreted the case Citizens Against Reckless Development v. Zoning Board of Appeals of Honolulu “as precluding the Kanaheles’ petition.” The majority determined Commission correctly interpreted Mauna Kea I and Mauna Kea II, both cases concerning challenges to the permit isued by the State for the Thirty Meter Telescope on Maunakea.

Associate Justice Nakayama concluded:

This court’s role is to interpret the statutory scheme as enacted by the legislature. The dissent contends this opinion “eliminat[ed] . . . the Commission’s jurisdiction over conservation land bearing CDUPs granted by the Department.” Not so. This court has faithfully interpreted the relevant statutes and concluded the statutory scheme does not permit the Commission to enforce uses within a conservation district. This court did not, and indeed has no authority to, rewrite an existing statute. Rather, “[o]ur function is to interpret the statute [or statutory scheme] as it exists, not to indulge in judicial legislation in the guise of statutory construction.” Territory of Hawaii v. Shinohara, 42 Haw. 29, 34 (Haw. Terr. 1957). While the dissent appears to question the efficacy of the statutory scheme to protect conservation district land, it is the legislature’s role, not ours, to amend existing law. See McIntosh v. Murphy, 52 Haw. 29, 39 469 P.2d 177, 182 (1970) (Kobayashi, J., dissenting); Yates v. United States, 574 U.S. 528, 570 (2015) (Kagan, J., dissenting) (“If judges disagree with Congress’s choice, we are perfectly entitled to say so — in lectures, in law review articles, and even in dicta. But we are not entitled to replace the statute Congress enacted with an alternative of our own design.”).

For the foregoing reasons, the Kanaheles’ points of error lack merit, and the LUC Order is affirmed.

In a dissenting opinion, joined by Associate Justice McKenna, Associate Justice Wilson wrote:

The Majority asserts that the Kanaheles’ petition to the Land Use Commission (“Commission”) for a declaratory order seeks to “contravene” the Department of Land and Natural Resources’ (“Department”) “powers to regulate conservation district uses.” I respectfully disagree. The Commission’s authority to classify land is distinct from the Department’s authority to regulate conservation districts. The Kanaheles’ petition requests the Commission’s declaration as to whether the land uses within the Astronomy Precinct on Mauna Kea are consistent with a conservation or urban district under Hawaiʻi Revised Statutes (“HRS”) § 205-2 (2018).1 The Commission’s authority to rule on the Kanaheles’ petition does not impede the Department’s authority to govern conservation districts.

The issuance by the Department of thirteen successive Conservation District Use Permits (“CDUPs”) pursuant to HRS § 183C-6(a) (2016) for astronomy facilities on Mauna Kea only heightens the importance of the Commission’s authority to determine whether reclassification of the Astronomy Precinct is necessary under HRS §§ 205-2, 205-3.1 (2005). The primary duty of the Commission is to place “all lands in the State” into one of four land use districts: urban, rural, agricultural, or conservation. HRS § 205-2. To determine whether reclassification is appropriate, the Commission must necessarily consider the use of such land, including uses pursuant to CDUPs. The Commission’s consideration of land uses permitted by the Department pursuant to CDUPs is a necessary component of the performance of its statutorily mandated duty to determine district land use boundaries.

Prohibiting the Commission from declaring whether the Astronomy Precinct should be reclassified thwarts the purpose of Hawaiʻi’s land use law, which is to “protect and conserve” valuable, limited, and sacred lands, while development proceeds in an “orderly” and “intelligent” manner. H. Stand. Comm. Rep. No. 395, in 1961 House Journal, at 855-56; Curtis v. Bd. of Appeals, Cnty. of Haw., 90 Hawaiʻi 384, 396, 978 P.2d 822, 834 (1999). In order to effectuate this purpose, the Commission must be able to declare when the cumulative impact of CDUPs and associated development calls for the reclassification of a conservation district. As stated by Chairperson Scheuer: “if it’s not up to this [C]ommission to ensure that the four districts’ lines are respected, I don’t know who it’s up to[.]”