State high court rules for group against telescope

The Hawaii Supreme Court ruled Friday in favor of Kilakila ‘O Haleakala, a group that opposes what it calls the “desecration of Haleakala” from the construction of a $300 million Advanced Technology Solar Telescope.

But the high court’s ruling may be only academic.

The state Board of Land and Natural Resources granted two conservation district use permits for the telescope – one in 2010, for which there was no contested case proceeding, and one in 2012, for which there was a contested case.

For the conservation use permit granted Dec. 1, 2010, the Supreme Court ruled that “a contested case hearing should have been held, as required by law and properly requested by Kilakila ‘O Haleakala, on the University of Hawaii’s application prior to the BLNR’s vote on the application.”

The judges returned the case to Circuit Court “for further proceedings consistent with this opinion.”

The university and the National Science Foundation have been developing the solar telescope jointly. Construction began Nov. 30, 2012.

Responding to Friday’s ruling, university officials said in an emailed statement that the telescope is being built under the 2012 permit, “which followed a lengthy contested case and was unanimously approved by the Board of Land and Natural Resources.”

“Today’s Supreme Court ruling was with respect to an earlier 2010 permit that was superseded by the 2012 permit,” officials said. “The Supreme Court’s ruling does not affect the 2012 permit. The university expects that construction of the ATST will continue under the 2012 permit.”

When asked what impact Friday’s ruling would have on the 2012 permit, Native Hawaiian Legal Corp. attorney David Kimo Frankel said that was “a good question” that could be further litigated.

“We’ll see what the Circuit Court does,” he said.

When asked what he would ask the Circuit Court to do, Frankel said he would talk with members of Kilakila ‘O Haleakala “and consider options.”

“It remains to be seen” whether the 2012 permit supersedes the one granted two years earlier, he said.

A statement from the Native Hawaiian Legal Corp., which represents Kilakila, said the court’s ruling showed that the land board should not have voted on the conservation district use permit for the telescope project in December 2010 without first conducting a contested case hearing. And, it said a challenge to the telescope project should have been allowed to proceed in court. Lower courts dismissed the challenges.

“Kilakila ‘O Haleakala had repeatedly requested contested case hearings in order to highlight the impacts that the project would have on cultural resources and scenic vistas,” Frankel said in the written statement. Nevertheless, the land board “chose to ignore those requests until after approving the permit.”

The Kilakila group has two other cases pending that challenge the telescope’s construction, he said. Those cases are pending before the state’s Intermediate Court of Appeals.

One case challenges the university’s “failure to prepare an environmental impact statement on the management plan for the summit of Haleakala,” according to the Native Hawaiian Legal Corp. And the other opposes the land board’s November 2012 decision to grant a second permit for construction of the 14-story-tall telescope in the 18-acre Haleakala High Altitude Observatories site, also known as Science City.

The Kilakila group is an organization “dedicated to the protection of the sacredness of the summit of Haleakala,” the Native Hawaiian Legal Corp. said.

* Brian Perry can be reached at