January 10, 2015: A correction, with edits as noted below.
An astute reader has pointed out that there were actually three cases regarding the Haleakala telescope (two of them remain unresolved), and that we got them mixed up in our post.
The first, resolved by the Hawaii Supreme Court in this opinion, was whether the BLNR should have held a contested case. The court ruled it should have, and voided the permit with BLNR had issued.
The second was the EIS challenge. The ICA concluded that no EIS was required, and the Supreme Court is considering its ruling in that case, after holding oral arguments in December 2014.
The case about which we wrote below is a challenge to the CDUA that was issued by the BLNR after it held the contested case required by Case #1. The ICA upheld the issuance of the permit in an unpublished memorandum opinion.
If you want to see what changes were made, see this post.
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As we guessed it might, the Hawaii Supreme Court yesterday accepted certiorari and agreed to review the Intermediate Court of Appeals' decision in Kilakila O Haleakala v. University of Hawaii, No. CAAP-13-0000182 (June 9, 2014).
That's the case challenging the University of Hawaii's plans for a new high-tech telescope up on the top of Maui's Haleakala. After a contested case, the ICA concluded the State Board of Natural Resources correctly issued a Conservation District Use permit allowing the University's telescope project to go forward.
The earlier (and now resolved case) was decided in 2013 by the Hawaii Supreme Court, which held that an appeal to a trial court under the Adminstrative Procedures Act lies from an agency's decision to grant a use permit even though it did not hold a contested case, if it has not resolved a third-party's demand for a contested case. The court also heard arguments last month in the related case which challenges the telescope project under Hawaii's EIS statute, chapter 343. There, the ICA concluded that the BLNR correctly determined that the telescope's Management Plan would not have a significant impact on the environment, which allowed the BLNR to issue a permit for the development in the state Conservation District. The ICA rejected the argument that the Superferry decision required the agency to consider the secondary impacts of the project, concluding that the difference between this case and Superferry was that here, the underlying telescope project did undertake an EIS and a cultural impact statement. More background on the case and issues here.
The Questions Presented in the latest cert application are too lengthy for us to reprint here (see pages 1-2 for the list of 13 -- count 'em, 13 -- QP's). That represents more than one issue per page!. But here's the short version: the BLNR should not have allowed the telescope project to go forward, because land use law, admin law, environmental law, etc. etc. Take your pick.
The Supreme Court's order accepting cert didn't narrow the issues down, so we presume that all 13 QP's are up for consideration. The case thus represents a target-rich environment for the petitioners and the court. Should make for interesting arguments, for sure.
Here are the briefs on the cert application for your review:
- Memorandum Opinion, Intermediate Court of Appeals
- Application for Writ of Certiorari
- BLNR's Response
- University of Hawaii's Response
- Petitioner's Reply to BLNR
- Petitioner's Reply to UH
Under Hawaii's appellate process, no further briefs will be submitted unless the Supreme Court asks for more (which it has not, at least not yet). We'll keep you posted as the case progresses.
